IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE
JURISDICTION
CRIMINAL APPEAL NOS.
1191-1194 OF 2005
Malay Kumar Ganguly ...
Appellant Versus
Dr. Sukumar Mukherjee and
others ....Respondents WITH
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1727 OF 2007
Dr. Kunal Saha ... Appellant
Versus
Dr. Sukumar Mukherjee and
others ...Respondents JUDGMENT
S.B. SINHA, J.
A. INTRODUCTION
A. 1. BACKGROUND FACTS:
The patient (Anuradha) and
her husband Dr. Kunal Saha (for short, "Kunal") were settled
in the United States of America. Anuradha, a child
2
Psychologist by profession,
was a recent graduate from a prestigious Ivy League School (`Columbia
University' in the New York State). Although a doctor by profession, Kunal has
been engaged in research on H.I.V/ AIDS for the past 15 years.
They left U.S.A. for a
vacation to India on 24th March, 1998. They arrived in Calcutta on 1st April,
1998. While in Calcutta, Anuradha developed fever along with skin rash on 25th
April, 1998. On 26th April, Dr. Sukumar Mukherjee, Respondent No. 1 herein
attended and examined Anuradha at her parental residence on a professional
call. Dr. Mukherjee assured the patient and her husband of a quick recovery and
advised her to take rest but did not prescribe her any specific medicine. However,
two weeks thereafter, i.e., on 7th May, 1998, the skin rash reappeared more
aggressively. Dr. Mukherjee was again contacted and as per his instructions,
Anuradha was taken to his chamber. After examining Anuradha, Dr. Mukherjee
prescribed Depomedrol injection 80 mg twice daily for the next three days.
Despite administration of the said injection twice daily, Anuradha's condition
deteriorated rapidly from bad to worse over the next few days. Accordingly, she
was admitted at the Advanced Medicare Research Institute (AMRI) in the morning
of 11th May, 1998 under Dr. Mukherjee's supervision. Anuradha was also examined
by Dr. Baidyanath
3
Halder, Respondent No. 2
herein. Dr. Halder found that she had been suffering from Erithima plus
blisters. Her condition, however, continued to deteriorate further. Dr. Abani
Roy Chowdhury, Consultant, Respondent No. 3 was also consulted on 12th May,
1998. On or about 17th May, 1998, Anuradha was shifted to Breach Candy
Hospital, Mumbai as her condition further deteriorated severely. She breathed
her last on 28th May, 1998.
Kunal sent a lawyer's notice
to 26 persons on 30th September, 1998. The first 19 addressees were those who
had treated Anuradha at Kolkata while addressee numbers 20 to 26 were those who
treated her in Mumbai. On or about 19th November, 1998 one of his relatives,
Malay Kumar Ganguly filed a Criminal Complaint in the Court of Chief Judicial
Magistrate, 24 Paraganas at Alipore against Dr. Sukumar Mukherjee, Dr.
Baidyanath Halder and Dr. Abani Roy Chowdhury, respondent Nos. 1, 2 and 3 for
commission of offence under Section 304-A of the Indian Penal Code. Thereafter
Kunal filed O.P. Nos. 240 of 1999 against 19 persons who had rendered medical
advice/treatment/facilities to Anuradha between 23rd April, 1998 and 17th May,
1998 at Kolkata before the National Consumer Disputes Redressal Commission, New
Delhi (Commission). However,
4
pursuant to the orders of the
Commission names of some of the respondents were struck off.
In the said petition the
complainant claimed an amount of compensation of Rs. 77,76,73,500/- with
interest for the alleged deficiency in the service rendered by Respondent Nos.
1, 2, 3, 5, 6 and AMRI hospital (Respondent No.4).
On or about 17.7.1999, a
complaint was filed by Kunal against Dr. Sukumar Mukherjee, Dr. Baidyanath
Halder and Dr. Abani Roy Chowdhury before the West Bengal Medical Council
(WBMC) making allegations similar to the one he had made in his complaint
before the Commission. On or about 29th May, 2000 , OP No. 179 of 2000 was
filed by Kunal against the doctors, including Dr. Udwadia of the Breach Candy
Hospital at Mumbai and the hospital itself before the Commission. Before the
learned Chief Judicial Magistrate, in the said criminal complaint a large
number of witnesses were examined. A large number of documents were also marked
as exhibits. The learned Chief Judicial Magistrate, Alipore by his judgment and
order dated 29th May, 2002 found Respondent Nos. 1 and 2 guilty of commission
of an offence under Section
5
304-A of the Indian Penal
Code and sentenced them to undergo simple imprisonment for three months and to
pay a fine of Rs.3,000/- each and in default to undergo a further simple
imprisonment for 15 days. Respondent No.3, Dr. Abani Roy Chowdhury was,
however, acquitted. The West Bengal Medical Council dismissed the complaint
filed by Dr. Kunal by its order dated 1st July, 2002. On 25th May, 2003 the
complainant-Kunal withdrew O.P. No.179/2009 filed before the Commission against
the doctors/Breach Candy Hospital.
Against the order of the
learned Magistrate, Respondent No.1 filed Criminal Appeal which was marked as
Criminal Appeal No.55 of 2002 and Respondent No.2 filed Criminal Appeal No. 54
of 2002 before the learned Sessions Judge at Alipore, whereas the complainant,
Mr. Malay Kumar Ganguly, filed a revision application being C.R.R. No. 1856 of
2002 for enhancement of the punishment imposed on Respondent Nos. 1 and 2. The
complainant also filed another revision application before the High Court
questioning the legality of the judgment with respect to acquittal of
Respondent No.3. The Calcutta High Court withdrew the appeals preferred
6
by Respondent Nos. 1 and 2
before the learned Sessions Judge to itself and heard the criminal appeals and
revision petitions together. By a judgment and order dated 19th March, 2004 the
appeals preferred by Respondent Nos. 1 and 2 were allowed while the Criminal
Revision Petitions filed by the complainant were dismissed. The said order has
been challenged before us by way of Criminal Appeal Nos. 1191-1194 of 2005. The
Commission also by its judgment and order dated 1st June, 2006 dismissed O.P.
No. 240 of 1999. Civil Appeal No.1727 of 2007 arises out of the said order.
A.2. SUBMISSIONS OF
APPELLANT:
Dr. Kunal Saha, who appeared
in person, made the following submissions :-
(i) Respondent No.1 from the
very beginning should have referred Anuradha to a Dermatologist as she had skin
rashes all over her body.
(ii) Diagnosis of Respondent
No.1 that Anuradha was suffering from angioneurotic oedema with allergic
vasculitis was wrong. In any event, prescribing a long acting corticosteroid
7
`Depomedrol' injection at a
dose of 80 mg. twice daily for the next three days when it was the beginning of
angeioneurotic oedema and the continued treatment on the same line later at
AMRI by Respondent No.1 and other doctors led to her death inasmuch as -
(a) The Medical Journals as
also the experts' opinion show that although steroid is not to be used when the
patient is diagnosed to be suffering from Toxic Epidermal Necrolysis (TEN), and
although some doctors still administer steroids, the administering of
Depomedrol of 80 mg. twice daily, could not be prescribed under any clinical
condition.
(b) For the said purpose the
evidence of Dr. Anil Shinde (PW-8), Manager of Medical Service for Pharmacia;
Dr. S. Bhattacharyya (PW-11), a highly respected Professor of Pharmacology at
the Banaras Hindu University and opinions of Prof. Jo-David Fine ; Professor
Gerald Pierard and Prof. Fritsch Peter (Exts. 4, 5 and 6) opining that steroids
and in any event Depomedrol could not be
8
prescribed; far less, in the
quantity in which it had been done.
(iii) The pro-steroid experts
also only use "quick acting" steroids for a short period and
that too at very early stages of the disease and then quickly stop the same to
avoid its side effects to enhance the infection or taper it gradually. (iv)
Respondents failed to adhere to the treatment protocol as outlined in the Table
of the Textbook "Cutaneous Medicine and Surgery" authored by
Prof. J.E. Revuz and J.C. Rojeau recommending - 5 "Primary Emergency
Care" and "Symphtomatic Therapy" including specific
direction for "fluid replacement', "antibacterial policy",
"nutritional support' etc. The aforementioned should have been advised
for treatment of Anuradha at AMRI.
(v) The treatment given to
Anuradha at AMRI hospital continued as Respondent Nos. 2 and 3 jointly took
charge and recommended steroids, despite stopping "'Depomedrol' after
12th May, 1998 without realizing that she had already been a huge amount of a
"long-acting" steroid (Depomedrol) and in
9
that view of the matter they
should have administered adopted remedial measures which was not done.
(vi) Respondents Nos.2 and 3
added more fuel to the fire in the form of a new
"quick-acting" steroid, "Prednisolone" at
40 mg. three times daily, which was itself an excessive dose. Dr. Udwadia of
Breach Candy Hospital noticed the same when Anuradha was examined by him; as
according to him not more than 40 mg. Prednisolone daily for one day, to be
reduced to 5 mg. within the next 5 to 6 days is the ideal dosage. (vii) When a
patient is diagnosed to be suffering from TEN, supportive therapy is imperative
in character but no such advice was rendered.
(viii) On and after 12th May,
1998, Anuradha was not provided any supportive treatment which could be evident
from the hospital records seized by the police.
(ix) Although the police
seized 71 pages of the record from AMRI, merely 22 pages are in relation to her
stay during 11th May to 17th May, 1998, whereas the medical record of Breach
Candy Hospital from 17th May to 27th May, 1998 cover around 370 pages.
10
(x) At AMRI records of vital
parameters like temperature, pulse, blood pressure; etc. were not maintained
which itself is an act of gross negligence.
(xi) Respondent Nos. 5 and 6,
although were junior doctors, also followed the treatment guidelines set forth
by the three seniors doctors, even though they were independent physicians with
postgraduate medical qualifications and, thus, it was expected of them that
they would take their independent decisions. (xii) The Expert doctors has
categorically stated that mal-practice had been committed during the treatment
of Anuradha. (xiii) The High Court committed a serious error in opining that
there was no medical negligence on the part of Respondents. (xiv) The
allegation that the appellant had resorted to forgery was arrived at by the
High Court without any application of mind as Dr. Anil Kumar Gupta testified
that it was Respondent No.5 who had inserted the words "for better
treatment" in his presence, which was also supported by Mr. T.R.
Nehra, handwriting expert.
(xv) The transfer certificate
when issued, in any event, must be held to be `for better treatment"
as otherwise transfer of a patient
11
from one hospital to the
other, in the situation of the present case, was not necessary.
(xvi) The claim that the
appellant had interfered in the treatment and had been responsible for his
wife's death is absolutely incorrect inasmuch as his name did not even appear
in any of the hospital records suggestive of any interference whatsoever.
(xvii) The alleged defence of alibi resorted to by Respondent No.3 and accepted
by the High Court is not borne out from the record which clearly shows that he
was closely involved in the treatment of Anuradha at AMRI.
(xviii) The telephone bills
brought on record clearly show that numerous calls were made by Dr. Kunal Saha
to Respondent No.3's residence as well as to his office, during Anuradha's stay
at AMRI which clearly established that Respondent No.3 was involved with
Anuradha's treatment.
(xix) The High Court has
failed to consider the previous decisions of this Court on criminal negligence,
as in the instant case gross negligence on the part of the Respondents
establishes the offence committed by them under Section 304-A of the Indian
Penal Code.
12
(xx) Negligence in fact in
Anuradha's treatment had been admitted by the Respondents at different stages
of the proceedings. A.3. SUBMISSIONS OF RESPONDENTS
Mr. Kailash Vasdev, learned
senior counsel appearing for Respondent Nos. 1 and 2 would submit :-
(i) Kunal misled the doctors
from time to time on the drugs/treatment to be administered to Anuradha. (ii)
The Pathological Reports which were carried out on the basis of the
prescription of Respondent No.1 had never been shown to him.
(iii) A panel of elected
Committee of the West Bengal Medical Council being an Expert Body having come
to a specific finding vis-`-vis the Respondents that there had been no
deficiency or negligence on the part of the doctors and use of the drugs is
demonstrative of the fact that Respondents had not committed an offence under
Section 304-A of the Indian Penal Code.
13
Mr. Ranjan Mukherjee, learned
counsel appearing on behalf of Respondent No.3 contended :-
(i) It stands admitted by the
appellant during his cross-examination that Respondent No.3 came to AMRI on
12th May, 1998 hours after Dr. B.N. Halder came there.
(ii) There is no evidence
that Dr. B.N. Halder and Respondent No.3 were together at AMRI or that those
they discussed about the treatment to be given to the patient.
(iii) Dr. B.N. Halder in his
examination under Section 313 of the Code of Criminal Procedure has admitted
that the prescription was written by him and, therefore, Respondent No.3 cannot
be said to have any liability.
(iv) The plea of the
appellant that a joint prescription was made by Respondent Nos. 2 and 3 having
been found to be in the handwriting of Kunal himself must be held to be a
self-serving document.
(v) Apart from making the
joint prescription, Respondent No.3 having not been involved in the treatment
of the deceased, the prosecution has miserably failed to prove its case.
14
(vi) So far as the
certificate of transfer of the patient is concerned, the same admittedly being
interpolated, no credence thereto can be attached.
(vii) As no witness has
testified in support of the allegation that he was the principal physician of
Anuradha during her stay at AMRI, the courts below must have correctly held.
(viii) Respondent No.3 having been acquitted by both the courts, this Court
should not exercise its jurisdiction under Article 136 of the Constitution of India
as the view taken by the courts below is a plausible one.
B. PROCEEDINGS
B.1. TRIAL COURT PROCEEDINGS
The common defence of all the
Respondents in the case is denial of material allegations brought against them
as also false implication. Separate defences, however, have been entered into
by each of the Respondents. We would notice them in seriatum:
(i) Dr. Sukumar Mukherjee
examined Anuradha Saha (deceased) only on 7th May, 1998 and 11th May, 1998. He
left India on 11th May, 1998 which was within the knowledge of her husband. He
treated
15
Anuradha as per medical
protocol. He diagnosed her disease as allergic/hypersensitivity vasculitis.
Depomedrol was correctly prescribed, being required for the disease Anuradha
had been suffering from. The dose prescribed was also correct. He prescribed
certain tests to be taken on 7th May as also on 11th May but he was not
apprised of the results of those tests. On 11th May, he had also prescribed the
requisite supportive treatment which was necessary for the recovery of
Anuradha.
(ii) Dr. Baidyanath Halder
examined the patient for one day only on 12th May, 1998. He diagnosed the
disease as Toxic Epidermal Necrolysis (TEN) correctly and prescribed medicines
as per the treatment protocol noted in the text books. He examined the patient
having been requested by a group of his students who were friends of Anuradha's
husband. He did not charge any fees. He prescribed all necessary supportive
therapy required for the patient of TEN. He had not been given any feedback by
the husband of the deceased after 12th May, 1998.
(iii) Dr. Abani Roychowdhury
had never seen the patient nor treated her at AMRI at any point of time. He
being attached to AMRI visited the hospital once in a week at the outdoor. On
12th May, 1998 having
16
been requested by Dr. Kunal
Saha as also Dr. Prasad, he went to the cabin only for the purpose of boosting
the patient's morale. He neither treated her nor was he a member of the team of
doctors treating Anuradha at AMRI. As despite requests he had not participated
in the treatment of the deceased, Kunal implicated him falsely.
(iv) Respondent No. 4
contended that the Appellant was fully aware of the absence of a burn ward in
AMRI at the time of admission of the deceased patient. Furthermore, the deceased
was shifted to a VIP cabin in the hospital which was fully isolated, with
environmental temperature control. Moreover it was Kunal, himself who had
prevented the nursing staff from taking the temperature, blood pressure etc.
Also the infection, as alleged, aggravated due to transportation of the
deceased from Kolkata to Mumbai. Moreover non administration of IV fluids is a
matter of judgment for the treating doctor and is not open to the Hospital
Management to interfere with. (v) Respondents 5, Dr. Balaram Prasad contended
that the medical treatment sheet of AMRI dated 11.5.1998, would show that he
not only attended the patient for the first time but he also meticulously noted
the diagnosis and continued the same medicine for one day as
17
was prescribed by Dr.
Mukherjee. Before, however, medicines as per his prescription could be
administered, Respondent Nos.1 and Respondent 2 took over the treatment.
(vi) Respondent 6, denied the
allegation of the appellant that he did not give effect to the medical protocol
while dressing Anuradha. According to him, reference was made to him by
Respondent No.5 for the sole purpose of dressing the patient. He took care of
the patient as far as wound care was concerned and did the dressing as per
medical norms in support whereof reliance was placed on the opinion of Dr. Jean
Claude Roujeau of France.
Respondents did not plead
guilty, they were put to trial in the criminal matter.
Before the learned Chief
Judicial Magistrate, South - 24 Parganas, Alipore, the prosecution examined 11
witnesses. The complainant Malay Kumar Ganguly examined himself as PW-1 whereas
husband of the deceased Kunal examined himself as PW-2. Dr. Balaram Prasad who
was a visiting consultant of AMRI at the relevant time was examined as PW-3. He
is Respondent No 5 in the connected civil appeal. Dr. Aloke Majumdar attached
to the B.R. Singh Railway Hospital, Sealdah as Senior Divisional
18
Medical officer (ENT)
examined himself as PW-4. PW-5 is Dr. Anil Kumar Gupta who was attached to the
Sub-divisional Hospital, Asansol as a Medical Officer. The President of the
West Bengal Medical Council Dr. Ashoke Kumar Chowdhury was examined as PW-6.
Prasenjit Bhattacharjee, a Sub-Inspector of Kolkata Police who was attached to
the Lake Police Station at the relevant time was examined as PW-7. Dr. Anil
Shinde, a medical practitioner and Manager of Pharmacia India Limited, Gurgaon,
Haryana (the company manufacturing Depomedrol) was examined as PW-8. Dilip
Kumar Ghosh who was the Registrar, West Bengal Medical Council has been
examined as PW-9. Dr. Faruk E. Udwadia, a consultant physician with
specialization in critical care and respiratory medicine of Breach Candy
Hospital, Mumbai who treated the deceased from 12th May, 1998 to 18th May, 1998
was examined as PW-10. Dr. Salil Kumar Bhattacharjee, Professor of Pharmacology
Institute of Medical Science, Benaras Hindu University was examined as an
expert witness PW-11 on behalf of the prosecution.
The defence has also examined
3 witnesses. DW-1 Smt. Sutapa Chanda is the Nursing Superintendent of A.M.R.I.
Dr. Kaushik Nandy, a Plastic Surgeon attached to AMRI, who is a Respondent in
the connected Civil Appeal and had treated the deceased, was examined as DW-2.
Mihir
19
Pal, a Group `D' staff
attached to Asansol Sub-Sivisional Hospital was examined as DW-3.
The prosecution proved as
many as 20 documents, whereas the defence has proved 4 documents.
Before the learned Trial
Judge as also before the Commission, the parties hereto had relied upon several
medical text books of different authors, journals, research papers/
deliberations of the National Conference on Medical Science, transcripts of
CDs, package insert, etc. One audio cassette has been produced on behalf of the
complainant to prove the conversation which took place between him and the
President of the West Bengal Medical Council Dr. Ashoke Kumar Chowdhury.
JUDGMENT OF THE TRIAL COURT
The Trial Court observed as
under:
I. The cause of death of
Anuradha was Septicemia shock with multi- organ failure leading to cardio-respiratory
arrest. II. The Breach Candy Hospital, Mumbai was not responsible for causing
the death of Anuradha.
III. Re : Dr. Sukumar
Mukherjee:
20
(i) He having been consulted
by Dr. Kunal Saha since the 4th week of April, 1998, i.e., at his residence, at
his chamber at Nightingale Diagnostic & Eye Care Rresearch Centre
Private Limited and particularly on 3rd May, 1998, 4th May, 1998, 7th May, 1998
as also on 11th May, 1998 at AMRI and his line of treatment having been
followed despite his leaving abroad on the night of 11th May, 1998, his defence
that his prescription from the afternoon of 11th May, 1998 became automatically
redundant and inoperative cannot be accepted from a doctor of his status. Such
a stand taken by him was not only a motivated one but beyond the moral
obligation of a doctor to his patients. The medicine was prescribed by him [
Corticosteriod, viz., Depomedrol (Methyleprednisolone Acetate) ] without even
diagnosing a disease. But, he did not advise symptomatic therapy like bed rest,
elevation of the legs and bandage to reduce Oedema nor prescribed any medicine
for control of the underlying disease. It was held:
"...Small vessel
vasculitis are of different kinds of which allergic vasculitis is one. It
corresponds approximately to Hypersensitivity Angilis. The term allergic is
little contentious since it implies a
immunological etiology which
may be an
over simplification. Allergic
vasculitis is the
21
most common part of
Leucocytoclastic
vasculitis in adults. It is
characterized by purpuric or necrotic skin lesions, with or
without systemic features.
Rheumatoid Arthritis is the most common association
with coetaneous
leucocytoclastic vasculitis..."
(ii)At least on 11th May,
1998, Anuradha was correctly diagnosed by Dr. A.K. Ghoshal as also the
following day by Dr. B.N. Halder, still application of Corticosteriod
Prednisolone for all these days in prohibitive quantity and dosing intervals
with no supportive therapy was continued. That made her lose all her immunity
to fight out bacteria and become immunosuppressed leading to `Septicemia' or
`Septic shock'.
(iii)PWs 5 and 11 also
deposed about high dose of Depomedrol. Its adverse effects caused
`Immunosuppression' and `Septicemia' which resulted in the death of Anuradha.
(iv)The working Manager of
Pharmacia India Ltd., Dr. Anil Shinde (PW-8) has categorically stated that the
maximum recommended dose of Depomedrol for any dermatological or other clinical
condition is 40 mg to 120 mg once a week or once in two weeks as
22
per the severity of the
disease and clinical need. Depomedrol cannot be given 80 mg twice daily in any
clinical condition and even in the right dose it is not recommended for TEN
patients as it is a long acting steroid. Therefore, musking of infection,
latent infections become active and opportunistic infections are likely as it
has immunosuppressive action. The package insert of Depomedrol in U.S.A.
indicates that Corticosteroids may musk some signs of infections and new
infections may appear during their use.
(v) Another expert Dr. Salil
Kumar Bhattacharya (PW-11) has gone further and stated that Depomedrol has a
prolonged duration of action. The half life of the drug is 139 hours for which
80 mg twice daily is excessive which is dangerous for the patient and the immediate
adverse effect of overuse of this steroid is immunosuppression and chance of
opportunistic infection. Sepsis is a severe infective condition which is
systemic in nature and is caused by rapid growth and multiplication of
infective organism as opined by PW-11.
(vi)Dr. Anil Kumar Gupta
(PW-5) made correspondences with Pharmacia Upjohn to receive the following
reply:
23
"...our package
insert on Depomedrol does not recommend the twice daily dose of
injection Depomedrol 80 mg.
in any clinical condition..."
(vii) In his opinion, the use
of Depomedrol in high doses can cause immunosuppression and H.P.A. Axis
suppression as per package insert.
(viii) Dr. Balaram Prasad who
admittedly treated Anuradha had doubt with regard to the treatment of the
patient and sought immediate advice regarding continuation of the drug from Dr.
Mukherjee and others. However, he was asked to continue with the medicine by
Dr. Mukherjee which was started by Dr. Roychowdhury, the Dermatologist.
(ix) Dr. Mukherjee did not
follow the treatment guidelines provided for in the Journals. The resolution
taken in an International Conference known as Creteilis Experience, 1987
authored by J. Revus and J.C. Roujeau (Ref. Archives of Dermatology, Vol. 123,
pages 1156-57) had also not been followed.
24
(x) Although steroids are
used but the supposed advantage of the said therapy are far outweighed by its
drawbacks. It is not used as a standard therapy in TEN.
(xi) Although use of
Corticosteroid is advocated in the treatment of TEN, reports from early 1980s
condemn their use. (xii) The husband of the deceased is a Non-Resident Indian
settled in America as a doctor. The complainant examined doctors from different
corners of the country. On the other hand, the witnesses examined on behalf of
the defence were one doctor, one Nursing Superintendent and one employee of the
Department of Health, Govt. of West Bengal. (xiii) It is not denied by Dr.
Mukherjee in his examination under Section 313 of the Code of Criminal
Procedure that immunosuppression, infection and sepsis are the serious adverse
effects of Corticosteroids as also the probable effect of the overuse and
excessive dose of the said steroids including Depomedrol.
(xiv) Even Dr. Kaushik Nandy
(DW-2) admitted that immunosuppression can be a side-effect of overuse or
excessive
25
use of Corticosteriods and
may cause a chance of infection in any patient. He admitted that steroids
should not be used as a standard therapy for treatment of TEN.
(xv) In Fitz Patrick's
Dermatology for General Medicine, the text book on which both sides placed
reliance, it is stated that "Glucocorticosteroids (steroids) may
promote the risk of infection (Pneumonia, Septicemia)".
(xvi) Steroid was used in the
Breach Candy Hospital, as deposed by PW-10, to completely taper the dose as the
patient had very high-circulating steroid level in her body because of her
receiving 120 mg. of Prednisolone daily in Kolkata and it was done for her
safety only. The point with regard to Haemodialysis was not put to Dr. Udwadia
and, thus, no benefit in this behalf can be given to defence.
(vii)Dr. Kaushik Nandy (DW-2)
has admitted that a very high circulating steroid level in a patient may appear
if large doses of steroids are administered.
26
(viii)Non-examination of some
witnesses like the brother of the deceased Amritava Roy and sisters of AMRI was
not very material.
Dr. Sukumar Mukherjee was
accordingly held guilty of the charge of negligence.
IV. Dr. Baidyanath Halder
(i) He although diagnosed
correctly but prescribed steroids. Although, according to him, he had examined
Anuradha only once and no feedback about her condition was given to him. If he
was so sincere and careful, he could have collected the information about the
condition of the patient with regard to the result of his treatment from the
Hospital authorities or the patient party. He had issued a certificate on 16th
May, 1998. His prescription of Prednisolone 40 mg. thrice daily and Minabol
twice daily was followed by the nurses of AMRI, as stated by Sutapa Chanda
(DW-1).
(ii)Dr. Halder was intimated
about the prescription of Dr. Mukherjee and the fact that Anuradha had already
received 800 mg. of Depomedrol which is equivalent to 1100 mg. of Prednisolone
but
27
despite the same he had
advised Prednisolone three times a day without any supportive therapy which is
mandatory for the patient of TEN as accepted by different universal protocols.
(iii)As Dr. Halder advised against pricking of needles in case of such
patients, no supportive treatment could be administered. (iv)In view of the
certificate given by Dr. Halder, the court had reason to believe that he
treated the patient from 12th May, 1998 at least upto 16th May, 1998.
(v) Non-tapering of doses of
steroid is in violation of the treatment protocol for the disease TEN. The
principles of supportive care have been violated totally in the prescription of
Dr. Halder. (vi)In his statement under Section 313 of the Code of Criminal
Procedure, he had taken a specific plea that "journey from Kolkata to
Bombay likely to enhance the danger", still, he had issued the
certificate.
(vii)The purported
interpolation of three words "for better treatment" did not
make any difference, i.e., in the certificate itself to show that it was issued
at the instance of the patient party.
28
(viii)The defence that the
patient was removed at their own risk is not correct as Dr. Saha did not
furnish any risk bond and only some other person not connected with the patient
had endorsed the record for taking the patient at his own risk. In any event,
such undertaking was not of much significance.
(ix)The accused doctor should
not be allowed to raise the question of chance of infection in transit from
Kolkata to Mumbai as Anuradha was suffering from TEN which is a non-infectious
disorder and she was found fit to travel from Kolkata to Mumbai. In view of her
physical condition which was found at Breach Candy Hospital, the certificate
issued does not properly reflect the actual physical condition of the patient,
which itself amount to avoidance of responsibility on the part of the treating
Physician. V. Dr. Abani Roychowdhury
(i) There is nothing to show
that Dr. Roychowdhury treated Anuradha except the entries which appeared in the
prescription of Dr. Mukherjee dated 11th May, 1998, viz., "May I
request Dr. Abani Roychowdhury to see her" and another endorsement
dated 15th May, 1998 wherein PW-3 Dr. B. Prasad wrote to continue as
29
advised by Dr. Mukherjee and
Dr. Abani Roychowdhury. There is nothing to show that he issued any
prescription. (ii) The statement of DW-1 that Dr. Roychowdhury had been to AMRI
is wholly unworthy of credence as she is a hearsay witness having heard the
same from PW-2 who in his evidence did not state thereabout.
(iii)The statement made by
DW-2 in his affidavit affirmed in the case before the Commission stating that
"I carried out and suggested necessary treatment in conformity with
the general treatment pattern prescribed by senior consultants, namely O.P.
Nos. 2 and 3 who were generally heading the medical team looking after the
treatment of the deceased. All the steps were taken to minimize chance of
infection and discomfort to the patient/deceased" has not been proved
as only a Xerox copy of the same had been produced. (iv) The complainant has
failed to establish the role of Dr. Roychowdhury in the treatment of Anuradha.
VI. The defence story that
Dr. Saha had interfered in the matter of treatment, as deposed by DW-2 is not
borne out from the treatment sheet and consultation record maintained and kept
by the nurses at
30
AMRI particularly in view of
the statement of DW-1 that Anuradha's nurses had been maintaining all the
records. VII. There is nothing on record to show that any advice was given for
biopsy. It was not necessary to conduct the post-mortem on the dead body of
Anuradha as the cause of death, as expressed by Dr. Udwadia, was known.
Immunosuppression having been found by Dr. Udwadia, permission for laboratory
tests was not considered necessary. B.2. HIGH COURT JUDGMENT
(i) The High Court on the
other hand in its judgment observed that in view of the nature of the offence
under Section 304-A, coupled with the fact that the penalty imposed therefor
was imprisonment for two years, the Chief Judicial Magistrate should have
converted the summons case into a warrant one.
(ii) The C.J.M. should not
have issued warrant of arrest without treating the case into a warrant case.
(iii) It should have been
considered that three renowned professors of the State could have been man
handled (by the police) on the basis of said arrest warrant.
31
(iv) The fact that accused
doctors did not levy any professional fees was also a matter of relevance.
(v) In absence of the
post-mortem examination with regard to the cause of death of Anuradha, it must
be held that the death was a natural one. The death certificate issued by the
Breach Candy Hospital, Mumbai was not a conclusive proof of the cause of death
but was only a tentative one. It was silent about the antecedent cause or other
significant conditions contributing to the death. The death certificate could
not rule out the possibility of accidental, suicidal or homicidal cause of
death. The doctor who issued the death certificate was not examined. Thus
immediate cause of death vis-a-vis the link thereof with the treatment at
Kolkata and that too specially at the hands of Respondents 1 to 3 was not
proved.
(vi) Improvement to her
health noticed in the Mumbai hospital after 25th May, 1998 ran contrary to the
contention of complainant. Re : DR. MUKHERJEE
The allegation that he was
responsible for causing the death of Anuradha by his rash and negligent act not
amounting to culpable homicide by advising, prescribing and treating the
deceased with steroid drugs namely
32
Depomedrol, 80 mg, IM stat
twice daily and other drugs in improper dosage at improper interval without any
supportive treatment was rejected for the following reasons :-
(i) Various tests advised by
him were not undertaken and he was not apprised of the treatment chart of
Anuradha for the period 3rd April, 1998 to 6th May, 1998.
(ii) Anuradha admittedly was
suffering from certain allergic disorders which were aggravated due to the
intake of Chinese food and for treating such allergic disorders generally
steroids would be used and thus the trial court was not correct to hold that
Dr. Mukherjee should not have prescribed Depomedrol. (iii) There is nothing on
record to show that the drug was actually administered to the patient because
no feedback of the treatment was given to him.
(iv) At the time of admission
at AMRI, Dr. Mukherjee's prescription was not taken into consideration. In fact
it was indicated that the patient was being treated by somebody else whose
identity had not been disclosed.
33
(v) Diagnosis that Anuradha
was suffering from TEN was not done by Dr. Mukherjee. The package insert of
Depomedrol did not indicate that it could not be prescribed for the said
disease. As Anuradha is stated to be suffering from vasculitis and could be
treated with the said medicine, which opinion has been supported by others
including Dermatologist - Dr. A.K. Ghoshal, it could not be construed to be
incorrect and contrary to medical practice and ethos.
(vi) Dr. Ghosal was not
examined to explain the basis upon which the patient was diagnosed to be
suffering from TEN. (vii) Oral admission of Tab. Wysolone was sufficient to
indicate that the treatment of the patient was being carried out as per the
prescription of Dr. Mukherjee. However, in any event the evidence on record was
sufficient to indicate that from 3rd April, 1998 till her admission at AMRI on
11th May, 1998, Anuradha was being treated after taking advice from different
doctors. There was evidence on record to indicate that Kunal's doctor friends
contributed in her treatment.
34
(viii) There is a possibility
of Anuradha suffering from drug allergy as well as allergy from Chinese foods.
Application of steroid is undoubtedly an accepted treatment protocol for
allergic disorders. In fact, Depo-Medrol is a Glucocorticoid which has anti
inflammatory and anti-allergic action. (ix) Allergic vasculitis is an allergic
and inflammatory condition of the blood vessels in the body and can affect not
only the blood vessels of the skin but also any internal vital organs leading
to death of the patient at any point of time. Allergic vasculitis is not a
dermatological disease. The treatment suggested by Dr. Mukherjee, therefore,
could not be considered to be an act of rash and negligence.
Re : DR. HALDER
The allegation of the
complainant that the prescription by Dr. Halder of Prednisolone 40 mg. thrice
daily had aggravated the disease was held not tenable on the following grounds
:-
(i) He visited the patient
only on 12th May, 1998 which was supported by Dr. Balaram Prasad. He,
therefore, had no role to
35
play in the treatment of
Anuradha which would be evident from the record of AMRI.
(ii) There is nothing on
record to show that the prescription of Prof. Halder was given effect to.
(iii) Occlusive dressings
were carried as a result of which infection had been increased
(iv) He had suggested
Benadryl Syrup as there were eruptions inside the mouth and Cortisone Kemicetin
eye ointment for eye care. However, the steroid based Neomycin Antibiotic was
prescribed by the Consultant Ophthalmologist Dr. S. Bhattacharya on 12th May,
1998, although Prof. Halder in his prescription advised to avoid Neomycin and
Soframycin which are common causes of drug allergy. As such the treatment
suggested by Prof. Halder was not followed. (v) There was no evidence to show
that he was incharge of the patient.
(vi) There was no evidence to
indicate that Dr. Mukherjee ever requested Dr. Halder to see the patient.
36
(vii) Despite the fact that
Dr. Halder confirmed that the patient was suffering from TEN, records indicated
that his line of treatment was not followed and, thus, the evidence to consider
the deceased to be suffering from TEN is of no value. (viii) Anuradha was thus
not suffering from TEN. Although the papers of Breach Candy Hospital mention
that the disease was diagnosed as TEN, but the attending physician was not a
dermatologist. Thus no one came forward to say that Anuradha was suffering from
TEN.
(ix) The death certificate
also did not indicate that Anuradha was suffering from TEN.
(x) Dr. Kunal Saha, husband
of the deceased Anuradha being himself not a Dermatologist; his opinion is
irrelevant, particularly when he is said to have become specialist of TEN
subsequently upon studying the subject after her death. (xi) Prescription of
Prof. Halder indicted that he stopped Depo- Medrol once he started Prednisolone
40 mg. thrice with other medicines. He also prohibited local anesthesia,
Neomycin,
37
Soframycin. He also gave
importance on Elecrtolyte balance, nutrition and advised for prevention of
secondary infection. (xii) Prof. Halder is a renowned Dermatologist with
numerous publications and teaching experience. His line of treatment was in
conformity with the accepted norms particularly in view of the fact that there
is no universal protocol for the treatment of TEN. Treatment of each patient
will depend upon his/her condition on a particular day.
(xiii) During Anuradha's stay
at AMRI there was no indication of any complication like hypovolemia, internal
organ failure, infection of septicemia etc.
Re : PROF. ABANI ROY
CHOWDHURY.
Allegation that he had also
taken active part in the treatment of Anuradha is not established from the
record. There is nothing on record to show that Dr. Halder while writing the
prescription had any prior discussion with Dr. Abani Roychowdhury. The
38
endorsement that the
prescription was a joint prescription of Dr. Halder and Dr. Roychowdhury was
admittedly made by Dr. Kunal Saha himself Although some of the doctors of AMRI
had stated that they had received the advice of Dr. Roychowdhury but the nature
of the advice had not been clarified by them.
RE: CERTIFICATE
The allegation that the
certificate was issued at the instance of Dr. Roychowdhury is not correct as
the certificate issued by Prof. Halder did not indicate that Anuradha was being
carried by a Chartered flight for better treatment. The words "for
better treatment" were not written by Prof. Halder and only in the
course of evidence it was proved that there was an interpolation in the
certificate. The same was also admitted by Dr. Balaram Prasad and thus the
certificate of Prof. Halder was held to be forged. The forged certificate
demolishes the prosecution story that at the advice of Prof. Halder or Prof.
Roychowdhury the patient was taken to Mumbai. The endorsement of Dr. Kunal Saha
on the record of AMRI really proved that Anuradha was shifted from the hospital
at their own risk. The evidence on record also indicates that till the evening
of 18th May, 1998, the dressing of Anuradha was not changed. Thus, by removing
Anuradha, her husband
39
Kunal Saha took upon himself
great risk of infection to her in course of transit being aware that infection
was very common at that critical stage for the patient.
Kolkata doctors had no hand
in shifting Anuradha from Kolkata to Mumbai.
The High Court also opined
that the patient party did neither follow the advice of Dr. Mukherjee nor that
of Prof. Halder. GENERAL OBSERVATIONS BY THE HIGH COURT
(i) As Anuradha was treated
at AMRI for six days and at Breach Candy Hospital for 12 days, by no stretch of
imagination her death had anything to do with the treatment at AMRI ; the cause
of death being absent. (ii) The contention of Dr. Kunal Saha that his wife was
almost dead when brought to Breach Candy Hospital, was untrue. (iii) Anuradha
was admitted under Dr. Balaram Prasad, who was a Consultant Physician having
Post Graduate Degree. He also claimed to be the physician-in-charge of the
treatment.
(iv) Interference by Dr.
Kunal Saha was sufficient to indicate that treatment of Anuradha was monitored
by him alone and nobody else.
40
Although, he claimed that
Anuradha was suffering from TEN which was a dermatological disease, but
Anuradha was admitted by him under a Plastic Surgeon, Dr. S. Keshwani. Even at
the initial stage Dr. Kunal Saha gave instructions to the doctors on 17th May,
1998 rejecting the treatment suggested by doctors attending at Breach Candy
Hospital, Mumbai. Thus the diagnosis of the disease and the follow-up action
was done under the direct supervision of Dr. Kunal Saha and his brother-in-law.
Such was the position at AMRI also.
(v) The opinion of three
internationally-accepted experts on TEN was not acceptable as none of them were
examined in Court. From the records of Breach Candy Hospital it would itself
appear that Anuradha was being administered medicines other than the ones
prescribed by the doctors. Cash memos for purchase of medicines would show the
discrepancy in the medicines prescribed by the doctors like Bactroban Ointment,
Efcorlin (one kind of steroid) and Sofratule purchased on 12th, 13th and 16th
May, 1998 had not been prescribed by the doctors. Relatives of the patient
having not followed the treatment protocol of the doctors under whom the patent
is admitted; as soon as any interference is made therewith, the doctors are
absolved of their liability.
41
Charge of professional
negligence on a medical person is a serious one as it affects his professional
status and reputation and as such the burden of proof would be more onerous. A
doctor cannot be held negligent only because something has gone wrong. He also
cannot be held liable for mischance or misadventure or for an error of judgment
in making a choice when two options are available. The mistake in diagnosis is
not necessarily a negligent diagnosis.
Even under the law of tort a
medical practitioner can only be held liable in respect of an erroneous
diagnosis if his error is so palpably wrong as to prove by itself that it was
negligently arrived at or it was the product of absence of reasonable skill and
care on his part regard being held to the ordinary level of skill in the
profession. For fastening criminal liability very high degree of such
negligence is required to be proved. Death is the ultimate result of all
serious ailments and the doctors are there to save the victims from such
ailments. Experience and expertise of a doctor are utilised for the recovery.
But it is not expected that in case of all ailments the doctor can give
guarantee of cure. B.3. NATIONAL COMMISSION JUDGMENT
42
The Commission in its
judgment noted that doctor or a surgeon never undertakes that he would
positively cure the patient nor does he undertake to use the highest degree of
skill, but he only promises to use fair, reasonable and competent degree of
skill. In this regard the commission opined that if there are several modes of
treatment and a doctor adopts one of them and conducts the same with due care
and caution, then no negligence can be attributed towards him
It went on to note that there
was no negligence on part of Dr. Mukherjee because even Dr. A. K. Ghoshal,
Dermatologist, who diagnosed the disease of Mrs. Anuradha as TEN, prescribed
the same treatment. Further, it observed that no records were produced by Dr.
Saha regarding the treatment given to Mrs. Anuradha from 1st April 1998 to 7th
May 1998. As there is no specific treatment for TEN, error of judgment in the
process of diagnosis does not amount to deficiency in service, considering that
the disease TEN is a rare occurring in 1 case out of 1.3 per million per year.
It went on to observe that
the patient was never in the absolute care of Dr. Haldar, who had treated her
only on 12th of May 1998. Dr. Haldar, it noted, was, therefore, an unnecessary
party.
43
It opined that all the
necessary care was taken by Dr. Mukherjee and Dr. Haldar. It laid special
emphasis on the fact that a complaint had been filed before the West Bengal
Medical Council, which concluded that there was no deficiency on the part of
the doctors. The Writ petition against the said decision before the High Court
was dismissed. Therefore, it was concluded that there was no negligence on the
part of the doctors. C. DETERMINATION OF CERTAIN SALIENT POINTS OF LAW AND
FACTS
C.1. EXPERT EVIDENCE
Section 45 of the Indian
Evidence Act speaks of expert evidence. It reads as under :-
"45. Opinions of
experts - When the Court has to form an opinion upon a point of foreign law, or
of science, or art, or as to identity of hand writing or finger-impressions,
the opinions upon that point of persons specially skilled in such foreign law,
science or art, or in questions as to identity of handwriting or finger
impressions, are relevant facts. Such person called experts.
Illustrations
(a) The question is, whether
the death of A was caused by poison. The opinions of experts as to the symptoms
produced by the poison by which A is supposed to have died, are relevant.
44
(b) The question is whether
A, at the time of doing a certain act, was by reason of unsoundness of mind, in
capable of knowing the nature of the act, or that he was doing what was either
wrong or contrary to law.
The opinions of experts upon
the question whether the symptoms exhibited by A commonly show
unsoundness of mind, and
whether such
unsoundness of mind usually
renders persons incapable of knowing the nature of the acts which they do, or
knowing that what they do is either wrong or contrary to law, are relevant.
(c) The question is, whether
a certain document was written by A. Another document is produced which is
proved or admitted to have been written by A.
The opinion of experts on the
question whether the two documents were written by the same person or by
different persons are relevant."
A Court is not bound by the
evidence of the experts which is to a large extent advisory in nature. The
Court must derive its own conclusion upon considering the opinion of the
experts which may be adduced by both sides, cautiously, and upon taking into
consideration the authorities on the point on which he deposes.
Medical science is a
difficult one. The court for the purpose of arriving at a decision on the basis
of the opinions of experts must take into
45
consideration the difference
between an `expert witness' and an `ordinary witness'. The opinion must be
based on a person having special skill or knowledge in medical science. It
could be admitted or denied. Whether such an evidence could be admitted or how
much weight should be given thereto, lies within the domain of the court. The
evidence of an expert should, however, be interpreted like any other evidence.
This Court in State
of H.P. v. Jai Lal and others, [ (1999) 7 SCC 280] held as under :-
" 17. Section 45 of
the Evidence Act which makes opinion of experts admissible lays down that when
the court has to form an opinion upon a point of foreign law, or of science, or
art, or as to identity of handwriting or finger impressions, the opinions upon
that point of persons specially skilled in such foreign law, science or art, or
in questions as to identity of handwriting, or finger impressions are relevant
facts. Therefore, in order to bring the evidence of a witness as that of an
expert it has to be shown that he has made a special study of the subject or
acquired a special experience therein or in other words that he is skilled and
has adequate knowledge of the subject.
18. An expert is not a
witness of fact. His evidence is really of an advisory character. The duty of
an expert witness is to furnish the Judge with the necessary scientific criteria
for testing the accuracy of the conclusions so as to enable the Judge to form
his independent judgment by the application of this criteria to the facts
proved by
46
the evidence of the case. The
scientific opinion evidence, if intelligible, convincing and tested becomes a
factor and often an important factor for consideration along with the other
evidence of the case. The credibility of such a witness depends on the reasons
stated in support of his conclusions and the data and material furnished which
form the basis of his conclusions.
19. The report submitted by
an expert does not go in evidence automatically. He is to be examined as a
witness in court and has to face cross- examination. This Court in the case of
Hazi Mohammad Ekramul Haq v. State of W.B.
concurred with the finding of
the High Court in not placing any reliance upon the evidence of an expert
witness on the ground that his evidence was merely an opinion unsupported by
any reasons." ADMISSIBILITY OF EXHIBITS 4, 5 AND 6
Kunal, before us, contended
that the High Court committed a serious error in not placing reliance upon
medical opinions i.e. Exts. 4, 5 and 6 on the premise that no objection in that
behalf was raised at any point of time. Kunal would argue that this Court
having given him permission to examine the expert witnesses on Video
Conferencing and he having deposed in terms thereof, Respondents could have
asked for their cross-examination at any point of time and not having done so,
it does not lie in their mouth to
47
contend that the opinions of
the said experts who are themselves authors on TEN and having done research on
the disease TEN, are not admissible. FOR THE PURPOSES OF CRIMINAL PROCEEDINGS
Kunal, however, would contend
that the aforementioned documents were exhibited without any demur whatsoever.
The respondents, furthermore, did not make any prayer to cross-examine the said
witnesses. It is true that ordinarily if a party to an action does not object
to a document being taken on record and the same is marked as an exhibit, he is
estopped and precluded from questioning the admissibility thereof at a later
stage. It is, however, trite that a document becomes inadmissible in evidence
unless author thereof is examined; the contents thereof cannot be held to have
been proved unless he is examined and subjected to cross- examination in a
court of law.
The document which is
otherwise inadmissible cannot be taken in evidence only because no objection to
the admissibility thereof was taken. In a criminal case, subject of course, to
the shifting of burden depending upon the statutes and/or the decisions of the
superiors courts, the right of an accused is protected in terms of Article 21
of the Constitution of India. The
48
procedure laid in that
behalf, therefore, must be strictly complied with. Exhibits 4, 5 and 6, in our
opinion, are not admissible in evidence in the criminal trial.
FOR PURPOSES OF PROCEEDINGS
BEFORE THE NATIONAL COMMISSION
The said exhibits, however,
are admissible before the consumer court. This Court in R.V.E.
Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P.
Temple,(2003) 8 SCC 752, at page 763 : "... Ordinarily, an objection
to the admissibility of evidence should be taken when it is tendered and not
subsequently. The objections as to admissibility of documents in evidence may
be classified into two classes: (i) an objection that the document which is
sought to be proved is itself inadmissible in evidence; and (ii) where the
objection does not dispute the admissibility of the document in evidence but is
directed towards the mode of proof alleging the same to be irregular or
insufficient. In the first case, merely because a document has been marked as
"an exhibit", an objection as to its admissibility is not
excluded and is available to be raised even at a later stage or even in appeal
or revision. In the latter case, the objection should be taken when the
evidence is tendered and once the document has been admitted in evidence and
marked as an exhibit, the
objection that it should not have been admitted in evidence or that the mode
adopted for proving the document is irregular cannot be allowed to be raised at
any stage subsequent to the marking of the document as an
49
exhibit. The latter
proposition is a rule of fair play. The crucial test is whether an objection,
if taken at the appropriate point of time, would have enabled the party
tendering the evidence to cure the defect and resort to such mode of proof as
would be regular. The omission to object becomes fatal because by his failure
the party entitled to object allows the party tendering the evidence to act on
an assumption that the opposite party is not serious about the mode of proof.
On the other hand, a prompt objection does not prejudice the party tendering
the evidence, for two reasons: firstly, it enables the court to apply its mind
and pronounce its decision on the question of admissibility then and there; and
secondly, in the event of finding of the court on the mode of proof sought to
be adopted going against the party tendering the evidence, the opportunity of
seeking indulgence of the court for permitting a regular mode or method of
proof and thereby removing the objection raised by the opposite party, is
available to the party leading the evidence. Such practice and procedure is
fair to both the parties. Out of the two types of objections, referred to
hereinabove, in the latter case, failure to raise a prompt and timely objection
amounts to waiver of the necessity for insisting on formal proof of a document,
the document itself which is sought to be proved being admissible in evidence.
In the first case, acquiescence would be no bar to raising the objection in a
superior court."
Section 22 of the Consumer
Protection Act, 1986 provides that Sections 12, 13 and 14 thereof and the rules
made thereunder for disposal of the complaints by the District Forum, shall
with such modification as may be considered necessary by the Commission, be
applicable to the disposal of disputes by the National Commission. Section 12
of the 1986 Act provides
50
for the manner in which the
complaint shall be made. Section 13 prescribes the procedure on admission of
the complaint. Sub-section (3) thereof reads:- "(3) No proceedings
complying with the procedure laid down in sub-sections (1) and (2) shall be
called in question in any court on the ground that the principles of natural
justice have not been complied with."
Apart from the procedures
laid down in Section 12 and 13 as also the Rules made under the Act, the
Commission is not bound by any other prescribed procedure. The provisions of
the Indian Evidence Act are not applicable. The Commission is merely to comply
with the principles of natural justice, save and except the ones laid down
under sub-section (4) of Section 13 of the 1986 Act.
The proceedings before the
National Commission are although judicial proceedings, but at the same time it
is not a civil court within the meaning of the provisions of the Code of Civil
Procedure. It may have all the trappings of the Civil Court but yet it can not
be called a civil court. [ See
Bharat Bank Ltd. v. Employees of the Bharat Bank Ltd. [1950 SCR 459] and Nahar Industries
Ltd. v. Hong Kong & Shanghai Banking Corporation etc. (Civil Appeal
arising out of SLP (C) No. 24715 of 2008 etc decided on 29th July, 2009)]
51
Mr. Gupta, learned counsel
appearing on behalf of Dr. Balram Prasad contended that the opinions, exhibits
P-4, P-5 and P-6 are inadmissible in evidence.
The opinions of the experts
as contained in the said documents are probably based on the hospital records
and other relevant papers. Such opinions have been rendered on the basis of
their expertise. They were notarized. The said opinions have been appended to
the complaint petition even as documents. Respondents did not question the
correctness thereof either before the court or before the Commission. They did
not examine any expert to show that said opinion are not correct. The concerned
respondents in their depositions before the Commission also did not challenge
the correctness or otherwise of the said opinions. Even otherwise the
deficiencies pointed out therein are explicit from the records. This Court in J.J.
Merchant (Dr) v. Shrinath Chaturvedi, [(2002) 6 SCC 635], held as under :-
"19. It is true that
it is the discretion of the Commission to examine the experts if required in an
appropriate matter. It is equally true that in cases where it is deemed fit to
examine experts, recording of evidence before a Commission may consume time.
The Act specifically empowers the Consumer Forums to follow the procedure which
may not require more time or delay the proceedings. The
52
only caution required is to
follow the said procedure strictly. Under the Act, while trying a complaint,
evidence could be taken on affidavits [under Section 13(4)(iii)]. It also
empowers such Forums to issue any commission for examination of any witness
[under Section 13(4)(v)]. It is also to be stated that Rule 4 in Order 18 CPC
is substituted which inter alia provides that in every case, the
examination-in-chief of a witness shall be on affidavit and copies thereof
shall be supplied to the opposite party by the party who calls him for
evidence. It also provides that witnesses could be examined by the court or the
Commissioner
appointed by it. As stated
above, the Commission is also empowered to follow the said procedure. Hence, we
do not think that there is any scope of delay in examination or
cross-examination of the witnesses. The affidavits of the experts including the
doctors can be taken as evidence. Thereafter, if cross-examination is sought
for by the other side and the Commission finds it proper, it can easily evolve
a procedure permitting the party who intends to cross-examine by putting
certain questions in writing and those questions also could be replied by such
experts including doctors on affidavits. In case where stakes are very high and
still a party intends to cross-examine such doctors or experts, there can be
video conferences or asking questions by arranging telephonic conference and at
the initial stage this cost should be borne by the person who claims such video
conference. Further, cross-examination can be taken by the
Commissioner appointed by it
at the working place of such experts at a fixed time."
C.2. DIAGNOSIS AND TRAIL OF
TREATMENT
OVERVIEW OF TOXIC EPIDERMAL
NNECROLYSIS
53
Toxic Epidermal Nnecrolysis
(TEN hereinafter) is also known as Lyell's Syndrome, epidermolysis acuta toxica
and scalded skin syndrome. TEN begins with a non- specific prodome of 1- 14
days in atleast half of the patients. It is a severe and extensive variant of
erythematobullous drug eruption. In TEN, the patient is ill with high fever
occasionally suffers somnolence and lassitude. Because of the extensive area of
eroded skin, large amount of body fluid is lost with consequent disturbances of
electrolyte and fluid balance. [See Dermatology in General Medicine ( Fitz
Patrick's) (5th Ed), and Comprehensive Dermatological Drug Therapy] NEGLIGENCE
IN TREATMENT OF TEN
For determining the question
as to whether the respondents herein are guilty of any negligence, we may
notice the treatment protocol. Anuradha, it is conceded, was suffering from
TEN. She had been positively diagnosed to be suffering from the said disease on
12th May, 1998. TEN is a spectrum of symptoms. The treatment protocol for TEN
has undergone considerable change throughout the world. TEN was discovered in
the year 1956 by Lyell. It leads to immunosuppression. For treating the
patients suffering from TEN, doctors used to administer steroid. Later
researches showed that they should not be
54
used. Such a conclusion was
arrived at upon undertaking researches of patients suffering from the said
disease with administration of steroid as well as non-administration of them.
It was found that those patients treated with steroids do not respond properly
thereto. Indisputably, however, some doctors still use steroids. It is stated
that the researchers found out that use of steroids was more detrimental than
beneficial to the TEN patients. Admittedly, Anuradha was administered steroids.
The learned counsel for the parties have brought before us a vast volume of
material to contend that the experts in the field as also the doctors or
medical practitioners who have specialized in TEN and other dermatological
diseases are sharply divided on the administration of steroid. We for the sake
of brevity refer to them as the pro-steroid group and anti-steroid group.
Medical science, therefore, has a grey area in this respect. At the outset, we
may place on record the treatment pattern prescribed by two experts, viz., Jean
Edouard Revuz and Jean Claude Roujeau who are generally accepted world over.
According to them, the treatment pattern should be as under:
"The disease usually
begins with non specific symptoms, such as fever, cough, sore throat, burning
eyes, followed in 1 to 3 days by skin and mucous membrane lesions. A burning or
painful
55
rash starts systematically on
the face and in the upper part of the tongue and rapidly extends. Most
frequently, the initial individual skin lesions form poorly defined margins
with darker purpuric centre progressively emerging on the skin, chest and back.
Less frequently, the initial manifestations may be extensive scarlatiniform
erythema.
Symptomatic therapy is a
must. IV fluids must be replaced mandatorily.
The treatment protocol
includes:
7 Symptomatic treatment
7 Monitoring
7 Fluid replacement and
anti-infection
therapy
7 Nutrition
7 Warming (30-32 degree
Celsius)
7 Skin care
7 Eyes and mucous membrane
care"
They hold the view that the
current evidence suggests that corticosteroids are more dangerous than useful
in these disorders as they increase the risk of death from infections,
including systemic candidiasis, a complication that had never been observed in
many patients treated without steroids.
After the death of Anuradha,
Kunal consulted a large number of experts from various countries including
India. The Canadian Treatment Protocol is as under:
56
"IV fluid
resuscitation- including internal feeding, use of air- fluidized beds, complete
avoidance of steroids, use of narcotics for pain, use of catheters to be
avoided, meticulous eye care daily, use of systemic antibiotic therapy for
specific infections but not for prophylaxis, topical antibiotic therapy is not
used, meticulous wound care and moist saline gauge dressing are applied once daily
when most of the involved epidermal surface has
sloughed off, usually 3 to 4
days after the onset of TEN the patient is given general anesthesia for washing
the wounds vigorously and applying
briobrane under tension to be
stapled all over". Dr. George Goris, Managing Director Medical and
Drug Information of Pharmacia and Upjohn expressed that
"DEPO" dosage of more than the approved indication, that too
80 mg twice daily, was not correct. Dr. David Fine, Dermatologist from University
of North Carolina opined as under:
"..... conventional
therapy of TEN with systemic corticosteroids involves either oral or
intravenous preparation. I have personally never seen
intramuscular corticosteroids
administration for this condition. In addition, intramuscular
corticosteroids are never
given on a BID schedule (and with some preparations no more frequently than
every 4-6 weeks) because of the prolonged Depot effect related to
administration by this particular route. In general, intramuscular administration
of systemic corticosteroids is not employed in the treatment of dermatological
57
diseases since this routes
provides very erratic release of medication from the tissue....." He
also remarked, as far as the treatment in the present case is concerned:
" .... manner in
which the treatment was instituted in your wife certainly appears to be
unprecedented."
Dr. David Heimbach, Professor
of University of Washington holds the view that the injection
"DEPO" in twice daily dose was not indicated in TEN protocol
and the dosing interval as advised in the prescriptions of the opposite party
no. 1 is not recommended for treatment of any medical condition, leave aside
for, far less an acute medical condition such as the one the patient was
suffering from i.e. TEN.
Dr. Timothy Bradley, noted
Physician wrote a famous article on TEN wherein it was stated that several
patients of TEN with 95% total BSA involvement were treated without use of
steroids and there was 100% survival rate. In his view, the keystone, for
survival in patients with TEN is fluid resuscitation and nutritional support
and vigilant surveillance for infection.
58
Gerald Pierard in his
treatise on TEN stated:- a) Antiseptic measures are essential to
treat TEN patients since
septicaemia
shock is the first cause of
mortality. So a sterile room and antiseptic bathes have to
be used. Intact blisters can
be left in
place but when they burst,
the narcotic
skin must be eliminated
otherwise it
becomes an excellent medium
for the
proliferation of
microorganisms.
Repeated skin swabs should be
done to
detect excessive coetaneous
infection and
to guide prophylactic
antibiotherapy.
Systematic antibiotics should
also be
used if direct or indirect
signs of
septicaemia happen: positive
blood
cultures, pneumonia, decrease
of the
urinary flow, fever or rapid
fall of the
temperature, impairing of the
general
condition, and decrease in
the white cells
count with neutropenia. The
search of
these signs implies a
permanent patient's
supervision with many blood
takes. Of
course, unnecessary i.v.
catheters should
be avoided but in practise it
is impossible to totally avoid them. They have to be
changed frequently and placed
in culture
after removal.
b) Supportive measures are
also essential.
Several litres of fluid per
day are needed
since fluid loss is enormous
in severe
cases. The absence of
substitution of
these fluids leads to
important internal
problems. The only way to
bring such
amount of fluid is by
catheters. The oral
59
way is absolutely inadequate,
more
especially as digestive tract
is also often injured. Once more, as previously said,
catheters should be changed
very
regularly (maximum every 3
days),
placed if possible in areas
of intact skin
and examined for bacterial
contamination
after removal.
c) Any definite TEN drug
treatment is
currently not recognised. The
case of
systematic steroids is
controversial. The
use of high doses of quick
acting
corticosteroids for a short
time could be
defensible for patients
treated at the
beginning of TEN without any
sign of
septic contamination, to try
to stop the
advancement of the disease.
Steroids are
clearly harmful and
ineffective when the
disease has settled.
Long-acting steroids
have no place in TEN
treatments. Their
action is too late.
d) The slough of the skin and
mucous
membrane is painful and it is
medical
and ethical concern to relief
pain in
TEN."
Our attention has also been
drawn to the resolutions adopted in the year 1985 at Creteil in France. We
would label it as `Creteil Experience'. It is summarized as under:
60
" The absence of
dermal inflammatory infiltration in TEN is an argument against steroid therapy.
Certain authors have claimed that the extension of necrolysis is arrested by
high-dose corticosteroid therapy, but the natural history of TEN is very
variable both in extent and time course. In some cases nerolysis is complete
within 24 hours. Clearly, steroid therapy is illogical in such patients. In
other patients, necrolysis may occur in waves. The unpredictable course of the
disease casts further doubt on uncontrolled claims of the efficacy of steroid
therapy. The benefits of steroid therapy, if any, would be observed only at an
early stage of a slowly evolving case of TEN. It cannot be overemphasised that
once a large area of dermis is uncovered i.e. more than 20% of the body surface
area, the supposed advantages of steroid-therapy are far outweighed by its
drawbacks. The opinion that
steroids should not be used as a standard therapy for TEN is shared by the
majority of authors and was unanimously agreed on at an international workshop
on TEN held in Creteil, France in October 1985. More recently, Halebian et al
have reported high improvement of survival in patients treated without steroids
when compared with a previous series of patients treated with high dose steroid
therapy in the same institution.
Kunal had also consulted
several doctors and experts in India. We would notice the opinion of some of
them here but we would deal with their admissibility at a later stage.
Dr. S.K. Bose from Apollo
Hospital, Delhi, on a query made by the appellant, opined that the treatment
protocol should be symptomatic and
61
corticosteroids should be
avoided. The resume of the protocol which should be followed, according to him,
is as under: - Discontinue all drugs implicated in TEN JAAD 1991 - Intravenous
canalization for fluid replacement depending upon % of TBSA, Nasogastric tube
feeding, catheter if required
- Topical skin care
- Monitoring serum
electrolytes by culture
- Room Temperature of about
30-32 degrees Celsius, sterile environment, air fluidized bed, barrier nursing
- Encourage oral fluids
- Hyperbaric oxygen,
aerosols, bronchial aspiration, physical therapy, therapies for herpes and
mycoplasma.
Appellant also consulted those
Indian doctors who still administered steroids. Dr. J.S. Pasricha is one of
them. According to him, use of corticosteroids in TEN was very controversial;
however, if they are used appropriately, the patient's life can be saved. Death
due to usage of corticosteroids in TEN patients, he stated, occurs only when :
- The reaction is not controlled properly
- Corticosteroids are not
withdrawn quickly Attention has also been drawn to the protocol treatment on
behalf of the respondents. They have placed reliance on a number of authorities
to
62
suggest a protocol of
treatment of the disease TEN in which the administration of
glucocorticosteriods plays an integral role. Some of the authorities suggested
by them include:
- Journal of Association of
Physicians of India. - Comprehensive Dermatological Drug Therapy. - Dermatology
by O. Brian Falco.
- Dermatology in General
Medicine (Fitz Patrick) (5th Ed) - Goodman and Gillman: The Pharmacological
Basis of Therapuetics (9th) (Ed)
- Harrison's Principle of
Internal Medicine - Principle's of Pharmacology.
- Journal of Burn Care and
Rehabilitation ( A 10 year experience with TEN)
- TEN - Medical Findings and
Prognosis in 87 Patients, Jean Revuz, From the archives of Dermatology
- J.S. Pasricha, TEN,
International Journal of Dermatology. Nonetheless the following principles are
integral to the treatment of TEN as suggested by the Respondents:
63
a. Treatment in burn units
should be strived for in exceptional cases but is not generally necessary.
b. Treatment has to be individually
tailored according to cause, type, stage and presence of complications.
c. Systemic glucocorticoids
should not be used routinely but are justified in the early stages of drug
induced TEN. They should be given in doses from 80 to 120 mg of methlypredisolone
per day by mouth, for several days until disease progression has ceased.
Dosages should be tapered quickly and cautiously since no further benefit can
be expected thereafter and the untoward effects may then predominate.
d. Treatment may focus on
early detection and prevention of the most fatal complication e.g. overwhelming
infection. Cultures from skin and mucosal erosions, must be regularly
performed. e. Blood gases and fluid, electrolytes and protein balance must be
monitored and adjusted appropriately. Fluid replacement regimens as used for
burn patients.
f. Supportive care is of
great importance and particular attention must be paid to a high calorie and
high - protein diet.
64
g. Debridgement of necrotic
skin should not be performed before disease activity ceases.
In the criminal case, the
appellant examined Dr. Salil Kumar Bhattacharjee. For the sake of completeness
it would be necessary to place on record his opinion in the matter.
Dr. Bhattacharjee, as noticed
hereinbefore, is a Professor of Pharmacology at the Institute of Medical
Science, Benaras Hindu University. In an answer to a query, on whether he was
aware of the drug Depomedrol and its usage, he answered that "it is
usually used in chronic clinical condition like Bronchial Asthma and Rheumatiod
Arthritis" and on being questioned, whether Depomedrol can be used for
TEN, he answered in the negative. He stated that recommended usage is 40 to 120
mg at intervals of at least one week and a daily dose of 80 mg can never be used.
Appellant also examined Dr. Udwadia. He is the Consultant Physician in the
Breach Candy Hospital. Anuradha was a patient in the said hospital under him.
He has not used Depomedrol although his personal view was that he would have
used lesser doses of corticosteroid. Although he had not used Depomedrol and he
had no experience with the said drug, he
65
categorically stated that it
could obviously add to steroid. In his statement, he made it clear that
"all corticosteroids are double-edged weapons on the one hand, there
can be a beneficial effect and on the other, they can have untoward effects and
the effect is immunosuppression leading to infection". He also
testified that supportive therapy was necessary. In the criminal case, even Dr.
Prasad who was examined as PW-3 stated that he prescribed Depomedrol for a day
after seeing the prescription of Dr. Mukherjee. And before the National
Commission he stated that Depomedrol 80 mg twice daily cannot be administered
to any patient. Before the Commission Dr. Mukherjee admitted that he prescribed
the injection of Depomedrol and gave it to the patient at the request of Kunal
on compassionate grounds. Dr. Halder accepted that Depomedrol is not the
correct medicine for TEN and is used in acute medical condition. We would, in
view of the difference of opinion amongst experts as noticed by us heretoabove
in some detail, proceed on the assumption that steroid can be administered in
the TEN patients. However, it is clear from the opinion of the pro-steroid experts
that: (i) The nature of steroid which should be used is corticosteroid meaning
thereby methyl prednisolone.
66
(ii) It should be used only
at the early stages for a few days and then should be stopped or tapered to
avoid the effect of immunosuppresion as also sepsis.
(iii) Supportive treatment
must be administered. (iv) It should be individually tailored according to the
patients' need.
Supportive treatment is also
advised by Dr. Pasricha and others. Two factors, however, must be noticed at
this juncture : (i) The chemical composition of Depomedrol is different from
other type of glucocorticosteroid inasmuch as Depomedrol is methyl prednisolone
acetate and glucocorticosteroid is methyl prednisolone sodium succinate. The
evidence of Kunal in this behalf is absolutely categorical and unequivocal.
(ii) All the authors are one in stating that their opinion is subject to the
instructions given in the package insert of the medicine. Kunal examined Dr.
Anil Shinde as PW-8. He is the Manager, Medical Service of Pharmacia India
Private Limited. Depomedorol is manufactured by Pharmacia and Upjohn, USA. The
company is the
67
distributor of the said
product in India. The packet insert of Depomedrol reads as under:
"DOSAGE:-
The usual dosage for patients
with Dermatalogic Lesions benefitted by systemic corticoid therapy is 40-120 MG
of Methyl Prednisolone acetate
administered intramuscularly
at weekly intervals for 1-4 weeks. In acute severe dermatitis due to poison IV
relief may result within 8-12 hrs following intramuscular administration of a
single dose of 80-120 MG. In chronic Contact dermatitis, repeated injections at
5-10 day intervals may be necessary. Following intramuscular administration of
80-120 MG to asthmatic patient's relief may result within 6-48 hrs and persist
for upto 2 weeks. Intramuscular dosage will vary with the condition being
treated when a prolonged effect is desired; the weekly dose may be calculated
by multiplying the daily dose by 7 and given as a singular intramuscular
injection. Dosage must be
individualised according to
the severity of the disease and the response of the patients. In general, the
duration of the treatment should be kept as short as possible. Medical
surveillance is
necessary.
PROPERTIES
After a single IM injection
of 40-80 MG of
Depomedrol, duration of HPA
Axis suppression ranges from 4-8 days. An intra-articular injection of 40 MG in
both knees given after 4-8 hrs methyl
68
prednisolone peaks of
approximately 21.5
micrograms/ 100 ML. After
intrarticular
administration, methyl
prednisolone acetate defuses from the joint into systemic circulation over
approximately 7 days as demonstrated by the duration of HPA Axis suppression
and by the serum Methyl Prednisolone Values.
INDICATIONS
For Intramuscular
administration, Methyl Prednisolone acetate (Depomedrol) is not suitable for
the treatment of acute life threatening conditions if a rapid hormonal effect
of maximum intensity is required the IV administration of highly soluble methyl
prednisolone sodium
succinate (Solumedrol) is
indicated.
PRECAUTION
Since the complications of
treatment with
glucocorticoids are dependant
on the size of the dose and the duration of treatment ,a risk/ benefit decision
must be made in each individual case as to dose and duration of treatment and
as to whether daily or intermittent therapy should be used. Glucocorticoids may
musk some signs of infection and new infections may appear during their use.
There may be decreased resistance and inability to localise infection when
glucocorticoids are used.
69
Do not use intrarticulary,
intra bursally or intra tendinous administration in the presence of acute
infection. IM administration can only be
considered after institution
of an appropriate anti microbial treatment."
The necessity of following
the instructions given in the packet insert cannot be underestimated.
Admittedly, the instructions in the said packet insert had not been followed in
the instant case. EFFECT OF EXCESS DOSAGE
There is, thus, a near
unanimity that the doses of glucocorticosteroid and in particular Depomedrol
were excessive. From the prescription of Dr. Mukherjee, it is evident that he
not only prescribed Depomedrol injection twice daily, but had also prescribed
Wysolone which is also a steroid having the composition of Methyl
Predinosolone.
From the AMRI records, it
would appear that while admitting the patient, it had categorically been
noticed that both Depomedrol injection twice daily and Wysolone were being
administered from 7th May, 1998 following the prescription of Dr. Mukherjee. It
also now stands admitted that Dr. Prasad also prescribed the same medicine.
From Dr. Mukherjee's prescription dated 11.05.1998, it is furthermore evident
that he had
70
prescribed Wysolone 50 mg
once daily for one week, 40 mg daily for next week and 30 mg daily for the
third week. He had also prescribed Depomedrol injection 80 mg twice daily for
two days. "Depomedrol", is a "long acting"
steroid recommended for the treatment of "chronic" clinical
conditions like "asthma" or "arthritis" for
its prolonged immnumosupressive action. The maximum recommended dose of
Depomedrol is 40-120 mg at 1-4 week intervals as clearly mentioned by the drug
manufacturer, Pharmacia. Dr. J.S. Pasricha, Prof. and Ex - head of Dermatology
at the All India Institute of Medical Sciences (AIIMS) has categorically
stated, "Depo - preparations are used for chronic diseases and not for
acute disease like TEN. Secondly, Depo preparations are not to be used twice a
day". In his deposition, Dr. Anil Gupta deposed that, he wrote to
Pharmacia Upjohn, to know from them if the drug can be used in this fashion (as
was done by the Kolkata doctors) in any clinical condition. In the reply sent
by Dr. S.P.S. Bindra, it was stated that "our package insert on
Depomedrol does not recommend the twice daily dose of injection Depomedrol 80
mg in any clinical condition". Moreover he also testified to the cause
of Anuradha's death was due to Septicemia, which happened as a result of
profound
71
immuno - suppression, caused
by overuse of steroid as prescribed by Dr. Mukherjee. Further cause of death of
Anuradha was lack of supportive treatment and lack of care on the part of Dr.
Abani Roycoudhuri and Dr. Halder and other attending Physicians.
In his deposition Dr. Anil
Shinde stated that he was working as a Manager, Medical Service with Pharmacia
India Pvt. Ltd and elucidated the details of Depomedrol. He stated that the
dosage should be between 40 to 120 mg once a week or once in two weeks. On
questioned whether 80 mg of Depomedrol can be given twice daily, the answer was
"No". In his deposition Dr. Salil Kumar Bhattacharya stated
that he was a ] Professor of Pharmacology. On being questioned whether he is aware
of the Drug Depomedrol and its usage, it was answered that "it is
usually used in chronic clinical condition like Bronchial Asthama and
Rheumatoid Arthritus". On being questioned whether Depomedrol can be
used for TEN, the answer was "No" He furthermore stated that
the recommended usage is 40 to 120 mg. at intervals of at least 1 week and a
daily dose of 80 mg can never be used. On the question whether `long acting'
steroids can accumulate in the body, he replied `Yes, it can accumulate.' On
being questioned, whether it is discretion of the Physician to decide the mode
of
72
administration of any drug,
he answered that the choice is "prerogative". However, he has
to follow the pharmaco- therapeutic norms of the drug chosen.
SUPPORTIVE THERAPY
No symptomatic therapy was
administered. No emergency care was provided. Dr. Halder himself accepted that
the same was necessary. This has also been stated by Roujeau and Revuz in their
book in the following terms:
"Withdrawal of any
suspect drug, avoidance of skin trauma, inserting a peripheral venous line,
administration of macromolecular solution, direct the patient to burn unit or
ICU."
AMRI records demonstrate how
abysmal the nursing care was. We understand that there was no burn unit in AMRI
and there was no burn unit at Breach Candy Hospital either. A patient of TEN is
kept in ICU. All emphasis has been laid on the fact that one room was virtually
made an ICU. Entry Restrictions were strictly adhered to. Hygiene was ensured.
But constant nursing and supervision was required. In the name of preventing
infection, it cannot be accepted that the nurses would not keep a watch on the
patient. They would also not come to see the patients or
73
administer drugs. No
nasogastric tube was given although the condition of mouth was such that she
could not have been given any solid food. She required 7 to 8 litres of water
daily. It was impossible to give so much water by mouth. The doctors on the
very first day found that condition of mouth was bad.
The ENT specialist in his
prescription noticed blisters around the lips of the patient which led her to
difficulty in swallowing or eating. No blood sample was taken. No other routine
pathological examination was carried out. It is now beyond any dispute that
25-30% body surface area was affected (re. prescription of Dr. Nandy, Plastic
Surgeon)
The next day, he examined the
patient and he found that more and more body surface area was affected. Even
Dr. Prasad found the same. Supportive therapy or symptomatic therapy,
admittedly, was not administered as needle prick was prohibited. AMRI even did
not maintain its records properly. The nurses reports clearly show that from
13th May onwards even the routine check-ups were not done. LINE OF TREATMENT
74
Kunal and Anuradha came on a
vacation to Calcutta on 1st April, 1998, principally to attend a wedding in the
family. Anuradha supposedly, after eating some Chinese food in some restaurant,
developed fever and skin rash on or about 25.4.1998. Respondent No.1, Dr.
Sukumar Mukherjee, indisputably is a very reputed Physician. He was a Professor
of Medicine in Calcutta Medical College. Anuradha and Kunal were advised to
consult him.
Respondent No.1 examined
Anuradha at her residence in the evening of 26th April, 1998. He suggested
certain pathological examinations. On that date no medicine was prescribed. Two
weeks thereafter i.e. on or about 7th May, 1998, Respondent No.1 was informed
by Kunal Saha that Anuradha's condition had deteriorated and the skin rash and
fever were back. She was taken to his chamber at 11, Shakespeare Sarani,
Calcutta. Maculopropular rash, palpable penpina, enlarged neck glands were
found to be present. She was diagnosed to be suffering from `Anglo-Neurotic
Oedema with allergic vasculitis'. Respondent No.1 prescribed Depomedrol stat
(immediately) injection 80 mg. on a twice daily schedule(B.I.D) for 3 days to
be followed by other oral steroids. One injection was given by him. Despite the
institution of Depomedrol, Anuradha's condition worsened from bad to worse in
the next few days and Dr. Kunal Saha,
75
contacted Respondent No. 1
from time to time for advice on telephone, who, however, insisted on continuing
Depomedrol in the same dose. Anuradha was said to have also examined by two
Consulting Dermatologists - Dr. A.K. Ghoshal and Dr. S. Ghosh, who diagnosed
disease to be a case of Vasculitis. The injection, as suggested by Respondent
No.1, however, was continued to be given.
On or about 11th May, 1998
Respondent No.1 was informed by Kunal that his wife's condition had not been
improving. The skin rash was persisting alongwith the fever and palpable neck
glands whereafter he was recommended that Anuradha be hospitalised immediately.
On the same date Anuradha was admitted in the Advanced Medicare Research
Institute (AMRI) (Respondent No. 4). On being admitted she was examined by Dr.
Balaram Prasad, Respondent No.5, who also continued with the injection of
Depo-Medrol 80 mg.(2 ml.) I/M B.D. x 1 day. Anuradha was examined by Respondent
No.1 at 2.15 p.m. on the same date. The prescription provided for Inj.
'Depomedrol' 80 mg IM twice daily x 2 days (then 40 mg IM twice x days) among
other things.
76
On the basis of the said
advise Anuradha was examined by Consultant Dermatologist Dr. A.K. Ghoshal.
Anuradha was diagnosed to be suffering from TEN. The bed ticket reads as under
:-
"Toxic Epidermal
Necrolysis.
Separation of large sheets of
skin from back and limbs, many small/ large bulla on limbs. Dusky red areas of
vasculitis almost all over the body. Mild conjunctivitis. Erosive lesions on
tongue and buccal mucosali.
Adv.
Maintain fluid and
electrolyte balance.
Maintain maximum asepsis.
Continue same medicines.
Soframycin cream to apply on
rash areas only Capsule Zevit - 1 Cap daily
To be reviewed
later."
Respondent No.3, Prof. Dr.
Abani Roy Chowdhury, Consultant, as recommended by Respondent No.12 was also
consulted on 12th May, 1998. It is however, stated that he did not examine the
patient as he had not been contacted by the hospital. Anuradha was also
examined by Respondent No.2, Dr. Baidyanath Halder, a Consultant Dermatologist
of fame and author of several Books on Skin Disorders. He also diagnosed that
it could be a case of TEN. He recommended treatment with Steroids like
Pedmeslan and and others and the application of ointments. Dr Halder found that
77
Anuradha was suffering from
Erithima plus blisters. However, no abnormality in the eyes or lungs was
detected. He, although opined that an electrolytic balance of the patent should
be maintained and steps should be taken to prevent any secondary infection, but
did not prescribe any medicine or indicated the steps to be taken therefor. Dr.
Prasad referred the patient to the following Consultants. (i) Dr. K. Nandy - a
Plastic Surgeon ;
(ii) Dr. Purnima Chatterjee -
a Gynecologist ; (iii) Dr. S. Ahmed - an E.N.T. Surgeon ;
(iv) Dr. S. Bhattacherjee ;
and
(v) Dr. N. Iqbal - General
Surgeon.
Her condition deteriorated
further. On or about 17th May, 1998 Kunal was advised to shift Anuradha to
Breach Candy Hospital, Mumbai. For the aforementioned purpose Respondent No.2
issued a certificate. Three words in the said certificate, namely -
"for better treatment" were said to be added. A Chartered
Plane was arranged for taking Anuradha to Mumbai from Kolkata on 17th May,
2009. She was admitted in the said hospital at about
78
9.30 p.m. On her admission to
the Breach Candy Hospital, it was recorded inter alia :-
"Mrs. Anuradha Saha
has been admitted to Breach Candy Hospital, on 17.5.98 at night - 9.30 PM. Her
condition on admission is serious. She has been accompanied by her husband Dr.
Saha, who has given the history of antibiotic injection for respiratory tract
injection - Rovamycin, Routhromycin, Ampicillin and Ampiclox and
Nemuslide followed by
development of Toixc
Epidermal Necrolysis. She has
received T
Prednisolone 120 mg/day for 7
days and also Inj. Depomedrol Im x 3 days. She has been
hemodynamically stable till
now. She is able to swallow liquids, which has been her only
nourishment over the past few
days."
She was examined by Dr.
Farokh E. Udwadia at the Breach Candy Hospital in the afternoon of 18th May,
1998. His diagnosis was as under :- "Patient has come with a diagnosis
Toxic Epidermal Necrolysis (TEN). She has had a number of drugs at Calcutta
form antibiotics to non-steroid and inflammatory agents. Is there any way of
distinguishing this from a Stevens & Johnson Syndrome? There is no skin
left. The mucus of the mouth, genitals and area is also severely affected. And
have not seen the evolution of the skin lesions to the point where there is now
no skin left. So far there is no organ evolvement in particular. No pulmonary
lesions nor any urinary lesions (organs commonly involved as in a Steven
Johnson
Syndrome). In any case the
basic management is the same. I do feel that the dose of steroids used in
79
Calcutta is either excessive
- 120 mg. Daily for a number of days, preceded by 80 mg Depomedral Injections.
I would not give more than 40 mg /day Kg. body weight."
On the same date Kunal's
brother who is also a doctor practicing in U.S.A. flew to Mumbai. He brought
with him a new antibiotic known as "Quinolone". There was
some difference of opinion between the brother-in- law of Anuradha and Dr.
Udwadia, which was noted by Dr. Udwadia. It reads as under :-
"He was claiming of
blood transfusion - insisted that his blood or the relatives or friends blood
be used - no objection. But I have requested that this is done quietly. The
advice was to give whole blood. My view is that `blood' is being used to
increase Hb., and it is unusually accepted that to do so one gives packed cell
and not whole blood. He was also advising the use of Erthropoitin as a marrow
stimulant. My view was that at the point of time Erythropeitin will make no
difference to her condition. To increase her Hb., from the present and
Requested packed RBC infusions.
He was keen on immediately
giving a tonic
supplement. In my experience
at this point of time, Zinc supplement was not of immediate importance that if
gut was working and her external feed could be increased, she would receive
sufficient tonic."
80
However, some differences
between Kunal and his elder brother on one hand and Dr. Udwadia persisted. He
noted as under :- "Have had great problems with the husband and
brother-in-law. It is with great difficulty that I have controlled myself. When
presented with his arrogance and condescends - merely and solely for the
patient's sake. To keep the peace, I have compromised on the following:
To allow the use of
Erythropoeitin. I reasoned that though it cannot do much good, it does not do
harm.
To allow the use of a Zinc
preparation - totally unnecessary but not likely to lead to Zinc
poisoning.
I would not allow parental
alimentation through the same central line as fluids and electrolytes as I feel
that gut if viable used at IV alimentation at this point of time may add to her
hazards". Her condition was better during 24th May and 25th May, 1998.
She, however, breathed her last on 28th May, 1998. NOSOCOMIAL INFECTIONS:
Nosocomial infections are
infections which are a result of treatment in a hospital or a healthcare
service unit, but secondary to the patient's original condition. Infections are
considered nosocomial if they first appear 48 hours or more after hospital
admission or within 30 days after discharge. Thus it
81
becomes the liability of the
hospital to prevent such infection specially in the cases where the patient has
high risk of infection due to the nature of disease suffered.
AMRI as also the other
respondents say that the room was made infection free. Certain restrictions on
the visitors had also been taken. It is, however, not disputed that the
dressing of body surface by Dr. Kaushik Nandy started only on 13th May, 1998.
What type of dressing was to be done is a matter of dispute. We may not go into
the said question. But, we must notice that in Breach Candy Hospital, the
dressing was done in operation theatre, firstly, on 18th May, 1998 and then on
all subsequent days. No dressing was done at AMRI in operation theatre. It is
now almost accepted worldwide that the hospital is liable to prevent such
infections specially in the case where the patient has high risk thereof due to
the nature of the disease suffered. It also almost stands established that use
of Depomedrol and other high dose of glucocorticosteroid may first lead to
immunosuppression which may in turn lead to septisis.
82
In April, 1998, when she
started suffering, she had skin rash. By the time, she came to AMRI on 11th
May, 1998, 25-30% of body surface area was infected. Admittedly, by 14th May,
1998, her entire body except the skull denuded of skin. Plastic Surgeon at
Breach Candy Hospital who had been doing the dressings on 19th May, 1998 stated
that green tinge had appeared on the back. Such a green tinge would not occur
within a day. Thus, infection was widespread. It might have been controlled to
some extent at Breach Candy Hospital. In the said hospital, the entire body was
put in bandage without leaving any part of the body open. It is only with a
view to control such bacterial infection, the antibiotics were administered.
C.3. FINDINGS AND ANALYSIS WITH RESPECT TO SO CALLED CLEAVAGE OF OPINION
FINDINGS ON SO CALLED CLEAVAGE
OF OPINION
Appellant, thus, has placed
on record the view points of experts - both of the pro-steroid and anti-steroid
group. Would it amount to cleavage of opinion so as to enable the court to
arrive at a safe conclusion that no negligence is proved or there was no
deficiency in service? In other words, the question is as to whether the
treatment of Anuradha was in accordance with the medical protocol. In our
opinion, the answer must be rendered in
83
the negative. Those who
support use and administration of steroid do so with note of caution. They in
no uncertain terms state that the same should be used at a preliminary stage.
Respondents do not spell out as to what would be the preliminary stage. The
preliminary stage must have started with the onset of the disease. She had been
suffering from skin rash from 3rd week of April, 1998. It increased with the
passage of time. The cause of such eruption was not ascertained. In fact what
caused the onset of disease was not known. It may be from Chinese food or it
may even be from use of vitamin.
On and from 7th May, 1998,
she was prescribed injection Depomedrol twice a day and Wysolone. It was
continued upto 13th May, 1998, nobody even thought of stopping the injection.
Dr. Halder although stopped Depomedrol injection from 13th May, 1998, but
prescribed a high dose of steroid.
No doctor posed unto
themselves a basic question why despite use of steroid, condition of the
patient was going from bad to worse. It is agreed across the board and at least
during trial, that supportive treatment should have been given. The medicine
was propagated which did not exist. The medical literatures were not consulted.
Even for pulse therapy Depomedrol could not have been used and only Solumedrol
could have been used. Kunal
84
in his evidence explained the
difference between the two. Dr. Mukherjee in his deposition indirectly accepted
the same. Each of those pro-steroid group spoke of a single injection. Nobody
suggested on the face of the voluminous medical literature and authoritative
opinions of the experts that two injections daily could be prescribed by any
prudent physician. A great deed of confusion was sought to be created between
one kind of steroid and another. Vague questions were asked from the experts to
show that steroids may be used but Dr. Pasricha stated that only a quick acting
steroid should be used. Depomedrol is not a quick acting steroid. Kunal in his
evidence categorically stated so in the following terms: "Prednisolone
can be used daily at 200 mgs for multiple sclerosis. But if instead of
Prednisolone, Depomedrol which is Methyl Prednisolone Acetate is used to this
patient he or she is likely to die. Depomedrol is not Prednisolone. And
majority of the dermatologists in the West do not do not use any steroid
whatsoever on TEN patients." "However there is no controversy
even among the "Pro-steroid" dermatologists that once more
than 20% of the BSA is affected no steroid should be used as it would only
enhance the chance of development of septicemia and death."
ANALYSIS
85
The High Court as also the
Commission principally proceeded on the premise that the respondents herein are
not liable either for any act of criminal misconduct or negligence because of
cleavage of opinion. The cleavage of opinion, if any, as we have noticed
hereinbefore, is between pro- steroid group and anti-steroid group. Accepted
treatment protocol so far as the pro-steroid group is concerned has also been
noticed by us. We have proceeded to determine the question of negligence on the
part of the respondents herein principally on the premise that even if the
opinion of the pro-steroid group is followed, the respondents have failed
and/or neglected to even act strictly in terms of the treatment protocol laid
down by them. The opinion of the anti-steroid group appears to be more
scientific and structured but the same by itself, we are conscious of the fact,
would not lead us to the conclusion that the respondents are guilty of gross
negligence. We may, however, notice that Mr. Fitz Patrick in his book
Dermatology in General Medicine (5th Edition), inter alia, opined as under:-
"Treatment:
2. According to our view,
agreement should be used on following for the treatment of TEN:
a. Treatment in burn units should
be strived for in exceptional cases but is not generally
necessary.
86
b. Treatment has to be
individually tailored according to cause type and stage and
presence and type of
complications.
c. Systemic glucocorticoids
should not be used routinely but are justified in the early stages of drug
induced TEN. They should be given
in doses from 80 to 120 mg of
methlypredisolone per day by
mouth, for
several days until disease
progression has
ceased. Dosages should be
tapered quickly
and cautiously since no
further benefit can be expected thereafter and the untoward effects may then
predominate.
d. Treatment may focus on
early detection and prevention of the most fatal complication e.g. overwhelming
infection. Cultures from skin
and mucosal erosions, must be
regularly
performed.
e. Blood gases and fluid,
electrolytes and
protein balance must be
monitored and
adjusted appropriately. Fluid
replacement
regimens as used for burn
patients.
f. Supportive care is of
great importance and particular attention must be paid to a high calorie and
high - protein diet.
g. Debridgement of necrotic
skin should not performed before disease activity ceases.
3. Course and Prognosis: The
following factors appear to be unfavourable prognostic signs: old age,
extensive skin lesions, nuetropenia, impaired renal function and intake of
multiple drugs. Septesemia, gastrointestinal hemorrhage, pnuemoina and fluid
and electrolyte imbalance leading to
87
renalinsufficiency are major
complications leading to death."
As noticed hereinbefore,
precautions as also the course of actions suggested by the authors have not
been undertaken by the respondents. It is to be noted that the learned authors'
expertise in the field is neither in doubt nor in dispute, particularly when
both parties have extensively relied thereupon. Even the suspected offending
drug was not withdrawn at later stages. This drug is considered to be a real
risk for the patient suffering from TEN. The medicine has also been
administered having regard to the physical condition of the patient. They were
required to be given only as a part of the total program. We may also place on
record that there has been a cleavage of opinion in regard to mortality rate.
Whereas according to the one group of experts in TEN patients when properly
treated and in particular given supportive treatment, the mortality rate is
0-10%' the respondents contend that that in fact the mortality rate is quite
high being 30-70%. We would assume that the mortality rate is very high. If
that be so, we feel that the doctors should have been more careful. They should
have treated the patient upon exercise of more care and caution. For the said
purpose, if they had not been able to diagnose the disease properly or identify
the proper drug they would have undertaken some research. It is
88
clear that they did not have
any expertise in the field and therefore they ought not to have behaved as
experts
We are, therefore, of the
opinion that the universally accepted medicated treatment protocol had also not
been followed. It is also to be noted at this juncture, that there may well be
a difference of opinion on the course of action to be adopted while treating a
patient of TEN, but the treatment line followed by Dr. Mukherjee which entailed
administration of 80 mg of Depomedrol injection twice is not supported by any
school of thought. The treatment line, in this case, does not flow from any
considered affinity to a particular school of thought, but out of sheer
ignorance of basic hazards relating to use of steroids as also lack of
judgment.
C.4. BURDEN OF PROOF
Kunal had not only obtained
opinion of a large number of experts, he examined some of the including Dr.
Anil Shinde P.W. 9,; Dr. Udwadia (P.W.10) and, Dr. Salil Kumar Bhattacharyya,
P.W. 11. Respondents did not examine any expert. They, however, relied upon
some authorities to which we have referred to heretobefore. The onus of proof,
therefore, on a situation of this nature shifted to the respondents.
89
While we say so we must place
on record that we are not oblivious of the fact that the principle of res ipsa
loquitur may not be strictly applicable in a criminal case, although certain
authorities suggest application of the said principle.
"10. Gross medical
mistake will always result in a finding of negligence. Use of wrong drug or
wrong gas during the course of anaesthetic will frequently lead to the imposition
of liability and in some situations even the principle of res ipsa loquitur can
be applied. Even delegation of responsibility to another may amount to
negligence in certain circumstances. A consultant could be negligent where he
delegates the responsibility to his junior with the knowledge that the junior
was incapable of performing of his duties properly." However, in Rattan
Singh v. State of Punjab,[(1979) 4 SCC 719}, this Court has held :-
"3. This, however,
does not excuse the accused from his rash driving of a "blind
Leviathan in berserk locomotion". If we may adapt the words of Lord
Greene, M.R. : "It scarcely lies in the mouth of the truck driver who
plays with fire to complain of burnt fingers". Rashness and negligence
are relative concepts, not absolute abstractions. In our current conditions,
the law under Section 304-A IPC and under the rubric of Negligence, must have
due regard to the fatal
90
frequency of rash driving of
heavy duty vehicles and of speeding menaces. Thus viewed, it is fair to apply
the rule of res ipsa loquitur, of course, with care. Conventional defences,
except under
compelling evidence, must
break down before the pragmatic Court and must be given short shrift. Looked at
from this angle, we are convinced that the present case deserves no
consideration on the question of conviction."
"12. Reliance placed
by Mr Kulkarni on Syad Akbar v. State of Karnataka1 is not apposite. It
proceeded on the basis that res ipsa loquitur stricto sensu would not apply to
a criminal case as its applicability in an action for injury by negligence is
well known. In Syad Akbar this Court opined: (SCC p. 41, para 30):
"30. Such simplified
and pragmatic
application of the notion of
res ipsa loquitur, as a part of the general mode of inferring a fact in issue from
another circumstantial fact, is subject to all the principles, the satisfaction
of which is essential before an accused can be convicted on the basis of
circumstantial evidence alone. These are: Firstly, all the circumstances,
including the objective
circumstances constituting
the accident, from which the inference of guilt is to be drawn, must be firmly
established. Secondly, those circumstances must be of a determinative
tendency pointing unerringly
towards the
guilt of the accused.
Thirdly, the
circumstances should make a
chain so
complete that they cannot
reasonably raise
91
any other hypothesis save
that of the
accused's guilt. That is to
say, they should be incompatible with his innocence, and
inferentially exclude all
reasonable doubt
about his guilt."
There cannot, however, be any
doubt whatsoever that in the civil appeal the said principle is applicable. It
has clearly been held by this Court that the onus of proof would shift on the
respondents. In Nizam
Institute of Medical Sciences v. Prasanth S. Dhananka and others,
[2009 (7) SCALE 407] this Court held as under :- "32. We are also
cognizant of the fact that in a case involving medical negligence, once the
initial burden has been discharged by the complainant by making out a case of
negligence on the part of the hospital or the doctor concerned, the onus then
shifts on to the hospital or to the attending doctors and it is for the
hospital to satisfy the Court that there was no lack of care or diligence. In
Savita Garg (Smt.) v. Director, National Heart Institute it has been observed as under:
Once an allegation is made
that the patient was admitted in a particular hospital and
evidence is produced to
satisfy that he died because of lack of proper care and
negligence, then the burden
lies on the
hospital to justify that
there was no
negligence on the part of the
treating doctor or hospital. Therefore, in any case, the
hospital is in a better
position to disclose what care was taken or what medicine was
92
administered to the patient.
It is the duty of the hospital to satisfy that there was no lack of care or
diligence. The hospitals are
institutions, people expect
better and efficient service, if the hospital fails to discharge their duties
through their doctors, being employed on job basis or employed on contract
basis, it is the hospital which has to justify and not impleading a particular
doctor will not
absolve the hospital of its responsibilities."
C.5. CONTRIBUTORY NEGLIGENCE
The High Court as also the
Commission opined that the death of Anuradha took place not because of any
negligence on the part of the doctors of AMRI but by reason of interference by
Kunal Saha. It was on the insistence of Kuanl Saha that the patient was
transferred to Bombay. It has been submitted that it was the infection which
developed during transportation which ultimately proved fatal. Interference by
Kunal at AMRI was sought to be proved through Sutapa Chanda, Nursing
Superintendant at AMRI, who appeared as DW-1. However, the statement of the
said Nursing Superintendent in regard to the alleged interference by Kunal is
not borne out from the record. As a matter of fact she had not been able to
explain the medicines which were to be administered to her stating:-
93
"Q.38 (Ld.
complainant counsel sows the witness Exbt. 8). What do you understand by this
line "Fusys 200 mg. / weekly once"; - 3rd line from the end?
Ans. Regarding this question
I like to say all instructions for mediction in Exbt. 8 were carried out by Dr.
Kunal Saha but not by my nurses. If I can not understand this instruction I
would have made queries and doctor would clear it. But I had no such chance to
make queries regarding this." It is to be noted here that Nursing
Superintendent being a professional cannot take this plea. Moreover, the same
is not borne out of records at AMRI. Even if we assume this statement to be
true, in a professional setting of this nature, these interferences should have
been resisted by them. Interference cannot be taken to be an excuse for
abdicating one's responsibility especially when an interference could also have
been in the nature of suggestion.
Same comments were said to
have been made by Dr. Halder while making his statement under Section 313 of
the Code of Criminal Procedure. They are admissible in evidence for the said
purpose. Similarly the statements made by Dr. Mukherjee and Dr. Halder in their
written statements before the National Commission are not backed by any
evidence on record. Even otherwise, keeping in view the specific defence raised
by
94
them individually,
interference by Kunal, so far as they are concerned, would amount to hearsay
evidence and not direct evidence. Dr. K. Nandy in his evidence stated that he
was not allowed to change the dressings on 15th May and 16th May, 1998.
However, according to him, he forced his decision to do the dressing on 17th
May, 1998 before she was taken away from the hospital.
However, it appears from the
AMRI records that the name of Kunal only appears once i.e. when he got Anuradha
admitted in the hospital. His name is not borne out from any other record. So
far as the statement of Dr. Nandy is concerned, Kunal's explanation is that he
did not follow the medical protocol in the matter of dressing. This may or may
not be correct. We may notice that whenever any interference in contrast to the
AMRI was attempted to be made by the patient party at Breach Candy Hospital, it
had scrupulously been placed on record. Wherever "Dr. Saha"
appears in the record, it is evident that the same refers to the elder brother
of Kunal, who is a surgeon. However, when there is any discussion with both the
brothers, like in the case of Dr. Udwadia, it had been recorded `both of them'.
95
It is accepted that the elder
brother of Kunal came to Mumbai on 17th May, 1998 itself. He brought with him a
new antibiotic named "Quinolone" which was not available in
India. He persuaded Dr. Udwadia to administer the said injection. This
discussion between them has also been recorded. Some adverse remarks have also
been recorded with regard to the conduct of Dr. Saha. Dr. Udwadia has noticed
in the records of the Breach Candy Hospital that he tolerated the said conduct
on the part of the elder brother of Kunal solely for the patient's sake.
Though some of the
suggestions of Dr. Saha did not seem particularly useful to Dr. Udwadia, but
those measures which were not harmful to the patient were administered. We,
however, may also notice that where Dr. Udwadia thought that there could be
some harm to the patient, he did not agree thereto. He, therefore, acted in a
professional manner. We may also place on record that despite such elaborate
and careful treatment meted out to Anuradha, her condition had been worsening;
Dr. Udwadia even agreed to administer the injection
"Quinolone" during her last day as he might have thought that
there was no harm in trying the same at that juncture.
Respondents also sought to
highlight on the number of antibiotics which are said to have been administered
by Kunal to Anuradha while she
96
was in AMRI contending that
the said antibiotics were necessary. Kunal, however, submitted that the said
antibiotics were prescribed by the doctors at AMRI and he did not write any
prescription. We would, however, assume that the said antibiotics had been
administered by Kunal on his own, but it now stands admitted that
administration of such antibiotics was necessary. To conclude, it will be
pertinent to note that even if we agree that there was interference by Kunal
Saha during the treatment, it in no way diminishes the primary responsibility
and default in duty on part of the defendants. In spite of a possibility of him
playing an over-anxious role during the medical proceedings, the breach of duty
to take basic standard of medical care on the part of defendants is not
diluted. To that extent, contributory negligence is not pertinent. It may,
however, have some role to play for the purpose of damages.
C.6. NON-JOINDER OF NECESSARY
PARTIES
Respondents contend that Dr.
Kunal had been selective in prosecuting three principal doctors on the criminal
side who allegedly treated Anuradha but some more before the Commission.
Contending that no reason has been assigned as to why case against Dr. A.K.
Ghoshal as also Breach Candy Hospital and doctors treating Anuradha at Bombay
from 17th May, 1998 till
97
28th May, 1998 had been given
up, the learned counsel urged that these appeals should be dismissed on that
ground alone. We are afraid that the aforementioned submission cannot be
accepted in view of the decision of this Court in Smt. Savita Garg (supra),
wherein it has been held:
" So far as the law
with regard to the non- joinder of necessary party under Code of Civil
Procedure, Order 1 Rule 9 and Order 1 Rule 10 of the CPC there also even no
suit shall fail because of mis-joinder or non-joinder of parties. It can
proceed against the persons who are parties before the Court. Even the Court
has the power under Order 1 Rule 10(4) to give direction to implead a person
who is a necessary party. Therefore, even if after the direction given by the
Commission the concerned doctor and the nursing staff who were looking after
the deceased A.K. Garg have not been impleaded as opposite parties it can not
result in dismissal of the original petition as a whole." An argument
has also been advanced that Anuradha was treated by as many as 16 doctors and,
thus, there was no reason as to why only the respondents should have been
proceeded against. Proceeding should be initiated both under the criminal law
as also the tort law only against those who are specifically found to be guilty
of criminal misconduct or medical negligence or deficiency in service and not
against all. Apart from making a
98
general submission, it has
not been pointed out as to what difference would have been made if others were
also impleaded as parties. The medical records were before the court. The
hospital records of both AMRI and Breach Candy were also before it. AMRI
records contained 22 pages, records of Breach Candy runs into more than 400
pages. No party had relied on any evidence other than those records as also the
oral evidence and documentary evidence brought on record by them. Respondents
have also not pointed out as to how treatment by any other doctor has
contributed in any manner to the death of Anuradha.
Submissions have also been
made at the bar that Kunal issued notices to a large number of persons but
withdrew the cases against most of them. It was placed before us that in the
first notice there were as many as 26 addresses and in the complaint filed
before the National Commission, there were 19 addresses. Withdrawal of cases
against some of them, in our opinion, is not of much significance. The
Directors of AMRI were impleaded as parties. Cases against them had also been
withdrawn and, in our opinion, rightly so as most of them were liable in their
personal capacity. Dr. Kunal says that the proceeding against Breach Candy
Hospital and doctors treating Anuradha had been withdrawn as the principal
grievance against the hospital was that they did not have any burn ward
although he
99
was already informed
thereabout. Burn ward was also not there in AMRI. In fact, it was brought on
record that no nursing home in Calcutta has a separate burn ward. Absence of
burn ward by itself, thus, might not be a contributory factor although
existence thereof was highly desirable keeping in view the treatment protocol.
We must bear in mind that
negligence is attributed when existing facilities are not availed of. Medical
negligence cannot be attributed for not rendering a facility which was not
available. In our opinion, if hospitals knowingly fail to provide some
amenities that are fundamental for the patients, it would certainly amount to
medical malpractice. As it has been held in Smt. Savita Garg (supra), that a
hospital not having basic facilities like oxygen cylinders would not be
excusable. Therein this Court has opined that even the so-called humanitarian
approach of the hospital authorities in no way can be considered to be a factor
in denying the compensation for mental agony suffered by the parents. The
aforementioned principle applies to this case also in so far as it answers the
contentions raised before us that the three senior doctors did not charge any
professional fees. In any event, keeping in view of the said decision, we are
of the firm opinion that notices to a large number of persons and withdrawal of
cases
100
against some of them by
itself cannot be considered to be a relevant factor for dismissal of these
appeals.
D. CIVIL LIABILITY UNDER TORT
LAW AS ALSO UNDER CONSUMER PROTECTION ACT
In this case, we are
concerned with the extent of negligence on the part of the doctors, if any, for
the purpose of attracting rigours of Section 304A of the Indian Penal Code as
also for attracting the liability to pay compensation to the appellant in terms
of the provisions of the Consumer Protection Act, 1986. We intend to deal with
these questions separately. It is noteworthy that standard of proof as also
culpability requirements under Section 304 -A of Indian Penal Code stands on an
altogether different footing. On comparison of the provisions of Penal Code
with the thresholds under the Tort Law or the Consumer Protection Act, a
foundational principle that the attributes of care and negligence are not
similar under Civil and Criminal branches of Medical Negligence law is borne
out. An act which may constitute negligence or even rashness under torts may
not amount to same under section 304 - A.
Bearing this in mind, we
further elaborate on both the questions separately.
101
D.1. LAW OF NEGLIGENCE UNDER
TORT LAW
Negligence is the breach of a
duty caused by the omission to do something which a reasonable man, guided by
those considerations which ordinarily regulate the conduct of human affairs
would do, or doing something which a prudent and reasonable man would not do.
[See Law of Torts, Ratanlal & Dhirajlal Twenty-fourth Edition 2002, at
p.441-442] Negligence means "either subjectively a careless state of
mind, or objectively careless conduct. It is not an absolute term but is a
relative one; is rather a comparative term. In determining whether negligence
exist in a particular case, all the attending and surrounding facts and
circumstance have to be taken into account." [See
Municipal Corpn. Of Greater Bombay v. Laxman Iyer, (2003) 8 SCC 731, para 6; Adavanced Law
Lexicon, P Ramanatha Aiyar, 3rd ed. 2005, p. 3161]
Negligence is strictly
nonfeasance and not malfeasance. It is the omission to do what the law
requires, or the failure to do anything in a manner prescribed by law. It is
the act which can be treated as negligence without any proof as to the
surrounding circumstances, because it is in violation of statute or ordinance
or is contrary to the dictates of ordinary prudence.
102
In Bolam v. Friern Hospital
Management Committee, [(1957) 2 All ER 118], the law was stated thus:
"Where you get a
situation which involves the use of some special skill or competence, then the
test.....is the standard of ordinary skilled man exercising and professing to
have that special skill. A man need not possess the highest expert skill; it is
well-established law that it is sufficient if he exercises the ordinary skill
of an ordinary competent man exercising that particular art.... [A doctor] is
not guilty of negligence if he has acted in accordance with a practice accepted
as proper by a responsible body of medical men skilled in that particular
art....Putting it the other way round, a [doctor] is not negligent, if he [has
acted] in accordance with such a practice, merely because there is a body of
opinion which [takes] a contrary view."
It has been laid down that an
ordinary skilled professional standard of care for determining the liability of
medical professional should be followed. (See Maynard v. West Midland Regional
Health, Authority, [(1985) 1 All ER 635 (HL)])
Recently in Martin
F.D' Souza v. Mohd. Ishfaq, [
(2009) 3 SCC 1], this Court laid down the precautions which doctors/hospitals
etc. should have taken, in the following terms :-
103
"(a) Current practices,
infrastructure, paramedical and other staff, hygiene and sterility should be
observed strictly....
(b) No prescription should
ordinarily be given without actual examination. The tendency to give
prescription over the telephone, except in an acute emergency, should be
avoided.
(c) A doctor should not
merely go by the version of the patient regarding his symptoms, but should also
make his own analysis including tests and investigations where necessary.
(d) A doctor should not
experiment unless
necessary and even then he
should ordinarily get a written consent from the patient.
(e) An expert should be
consulted in case of any doubt...."
In fact, the Bolam case in
common laws jurisdictions is weakened in recent years by reasons of series of
decisions in Australia [Rogers v. Whitaker: (1992) 109 Aus LR 625 and Roenbreg
v. Percival 2001 HCA 18]; Canada [Ribl v. Hughes: (1980) 114 DLR 3d 1] and the
United States and even in the United Kingdom.
We may refer to Bolitho v.
City and Hackney Health Authority, [(1997) 4 All ER 771 (HL)], where the Court
got away from yet another aspect of Bolam case. It was observed :-
104
" The court is not
bound to hold that a defendant doctor escapes liability for negligent treatment
or diagnosis just because he leads evidence from a number of medical experts
who are genuinely of opinion that the defendant's treatment or diagnosis
accorded with sound
medical practice. The use of
these adjectives - responsible, reasonable and respectable - all show that the
court has to be satisfied that the exponents of the body of opinion relied upon
can demonstrate that such opinion has a logical basis. In particular in cases
involving, as they so often do, the weighing of risks against benefits, the
judge before accepting a body of opinion as being responsible, reasonable and
respectable, will need to be satisfied that, in forming their views, the
experts have directed their minds to the question of comparative risks and
benefits and have reached a defensible conclusion on the matter."
In this regard it would be
imperative to notice the views rendered in Jacob
Mathew v. State of Punjab, [(2005)
6 SCC 1, where the court came to the conclusions:
(i) Mere deviation from
normal professional practice is not necessarily evidence of negligence.
(ii) Mere accident is not
evidence of negligence (iii) An error of judgment on the part of a professional
is not 7negligence per se.
105
(iv) Simply because a patient
has not favourably responded to a treatment given by a physician or a surgery
has failed, the doctor cannot be held liable per se by applying the doctrine of
res ipsa loquitor.
RIGHT OF THE PATIENT TO BE
INFORMED
The patients by and large are
ignorant about the disease or side or adverse affect of a medicine. Ordinarily
the patients are to be informed about the admitted risk, if any. If some
medicine has some adverse affect or some reaction is anticipated, he should be
informed thereabout. It was not done in the instant case.
In Sidaway v. Board of
Governors of Bethlem Royal Hospital and the Maudsley Hospital, [ [1985] All ER
643 ], the House of Lords, inter alia held as under :-
"The decision what
degree of disclosure of risks is best calculated to assist a particular patient
to make a rational choice as to whether or not to undergo a particular
treatment must primarily be a matter of clinical judgment.
An issue whether
non-disclosure of a
particular risk or cluster of
risks in a particular case should be condemned as a breach of the doctor's duty
of care is an issue to be decided primarily on the basis of expert medical
evidence. In the event of a conflict of evidence the judge will have to
106
decide whether a responsible
body of medical opinion would have approved of non-disclosure in the case
before him.
A judge might in certain
circumstances come to the conclusion that disclosure of a particular risk was
so obviously necessary to an informed choice on the part of the patient that no
reasonably prudent medical man would fail to make it, even in a case where no
expert witness in the relevant medical field condemned the non-disclosure as
being in conflict with accepted and responsible medical practice."
The law on medical negligence
also has to keep up with the advances in the medical science as to treatment as
also diagnostics. Doctors increasingly must engage with patients during
treatments especially when the line of treatment is a contested one and hazards
are involved. Standard of care in such cases will involve the duty to disclose
to patients about the risks of serious side effects or about alternative
treatments. In the times to come, litigation may be based on the theory of lack
of informed consent. A significant number of jurisdictions, however, determine
the existence and scope of the doctor's duty to inform based on the information
a reasonable patient would find material in deciding whether or not to undergo
the proposed therapy. [See Canterbury v. Spence, 464 F.2d 772 (D.C. Cir. 1972),
cert. denied, 409 U.S. 1064 (19r72); see also Cobbs v. Grant, 8 Cal. 3d 229,
104 Cal. Rptr. 505, 502 P.2d 1 (1972); Hamiltorn v. Hardy, 37 Colo.
107
App. 375, 549 P.2d 1099
(1976)]. In this respect, the only reasonable guarantee of a patient's right of
bodily integrity and self-determination is for courts to apply a stringent
standard of disclosure in conjunction with a presumption of proximate cause. At
the same time, a reasonable measure of autonomy for the doctor is also
pertinent to be safeguarded from unnecessary interference.
D.2. TRANSPORTATION
So far as transportation of
Anuradha from Kolkata to Mumbai is concerned, we must place on record that a
certificate in that behalf was given by Dr. Baidyanath Halder correctness
whereof, except for the words "for better treatment" is not
in dispute. Dr. Halder does not contend that the contents of the same are
wrong. He merely says that the same was issued at the instance of the patient.
The submission of Dr. Halder that he had issued the certificate without seeing
the patient cannot be believed. If that be so, such a certificate could have
been issued by Dr. Balram Prasad and/or any other doctor. Why he had taken the
burden of issuing such a certificate is not explained.
We are of the opinion that a
conclusion as to whether the words "for better treatment"
have been inserted in the said certificate or not or the same
108
was done at the instance of
Kunal, is wholly unnecessary for our purpose. The only question which arises is
as to whether there was any risk of Anuradha developing infection due to
exposure during transportation. She was flown to Mumbai by an exclusive
chartered flight (air ambulance) of East-West Rescue of Delhi. Kunal had to pay
about $ 2000 for the said purpose. Respondents did not suggest that the service
provided by the said airlines was of inferior character or sufficient
precautions were not taken during transportation. In fact, the condition of
Anuradha was so critical that there was no other option but to take her to a
better hospital. Her transportation to Mumbai was necessary and was not an act
borne out of desperation alone.
We may notice that even a
couple of Kunal's friends, who were doctors, came to Mumbai by Jet Airways
flight. It appears that East West Rescue of Delhi, which provided air
ambulance, must have taken all necessary precautions. Although lot of
literature on the subject relating to the services of the said airlines showing
that it is considered to be one of best in the world is available, we refrain
from dealing with the same, as it is not necessary. Dr. Udwadia made a comment
that transportation of Anuradha from Kolkata to Mumbai may have exposed her to
infection. He, however, added
109
a proviso thereto - unless
better care was taken. There was no reason as to why the proper care was not
taken, particularly seeing her condition. There is no evidence on record
leading to an opposite conclusion. Dr. Nandy, stated dressing was necessary
before transportation. He must have done so keeping in view the necessity of
prevention of further infection during flight. At Bombay, Dr. Kulkarni noticed
a green patch showing old infection. It must have escaped the notice of even
Dr. Nandy. Dr. Kulkarni noticing the same, observed that the patient's
condition was worse than he anticipated. D.3. LEGITIMATE EXPECTATION
Kunal approached the best
doctors available. He admitted his wife at AMRI on the recommendation of Dr.
Mukherjee, evidently, expecting the best possible treatment from the renowned
doctors and a renowned hospital. It was not too much for a patient to expect
the best treatment from the doctors of the stature of Dr. Mukherjee, Dr. Halder
and Dr. Abani Roy Chowdhury. Services of other experts in fields were
requisitioned by the Hospital. References were made and the Hospital on the
basis of the recommendations made by the doctors themselves consulted the best
doctors in their respective fields. Kunal or Anuradha or his relatives never
interfered therewith. They did not call any doctor of their choice to the
Hospital. In fact, after Dr. A.K. Ghoshal came to know that Anuradha was
suffering from
110
TEN, he suggested a line of
treatment which was not adhered to keeping in view the fact that Dr. Halder and
hospital authorities were in charge of the case.
The standard of duty to care
in medical services may also be inferred after factoring in the position and
stature of the doctors concerned as also the hospital; the premium stature of
services available to the patient certainly raises a legitimate expectation. We
are not oblivious that the source of the said doctrine is in administrative
law. A little expansion of the said doctrine having regard to an implied nature
of service which is to be rendered, in our opinion, would not be quite out of
place.
AMRI makes a representation
that it is one of the best hospitals in Calcutta and provides very good medical
care to its patients. In fact the learned Senior Counsel appearing on behalf of
the respondents, when confronted with the question in regard to maintenance of
the nurses register, urged that it is not expected that in AMRI regular daily
medical check-up would not have been conducted. We thought so, but the records
suggest otherwise. The deficiency in service emanates therefrom. Even in the
matter of determining the deficiency in medical service, it is now well-
settled that if representation is made by a doctor that he is a specialist and
111
ultimately it turns out that
he is not, deficiency in medical services would be presumed.
We may notice some of the
decisions in this behalf. In Smt.
Savita Garg v. The Director, National Heart Institute [2004 (8) SCALE 694 : (2004) 8 SCC
56], this Court opined: "It is the common experience that when a
patient goes to a private clinic, he goes by the reputation of the clinic and
with the hope that proper care will be taken by the Hospital authorities. It is
not possible for the patient to know that which doctor will treat him. When a
patient is admitted to a private clinic/ hospital it is hospital/ clinic which
engages the doctors for treatment. ...They charge fee for the services rendered
by them and they are supposed to bestow the best care."
D.4. INDIVIDUAL LIABILITY OF
THE DOCTORS
There cannot be, however, by
any doubt or dispute that for establishing medical negligence or deficiency in
service, the courts would determine the following:
(i) No guarantee is given by
any doctor or surgeon that the patient would be cured.
112
(ii) The doctor, however,
must undertake a fair, reasonable and competent degree of skill, which may not
be the highest skill. (iii) Adoption of one of the modes of treatment, if there
are many, and treating the patient with due care and caution would not
constitute any negligence.
(iv) Failure to act in
accordance with the standard, reasonable, competent medical means at the time
would not constitute a negligence. However, a medical practitioner must
exercise the reasonable degree of care and skill and knowledge which he
possesses. Failure to use due skill in diagnosis with the result that wrong
treatment is given would be negligence. (v) In a complicated case, the court
would be slow in contributing negligence on the part of the doctor, if he is
performing his duties to be best of his ability.
Bearing in mind the aforementioned
principles, the individual liability of the doctors and hospital must be
judged. We enumerate heretobelow the duty of care which ought to have been
taken and the deficiency whereof is being complained of in the criminal case
113
and the civil case,
respectively, so far as respondent Nos. 1 to 3 are concerned.
When Dr. Mukherjee examined
Anuradha, she had rashes all over her body and this being the case of
dermatology, he should have referred her to a dermatologist. Instead, he
prescribed "Depomedrol" for the next 3 days on his assumption
that it was a case of "vasculitis". The dosage of 120 mg
Depomedrol per day is certainly a higher dose in case of a TEN Patient or for
that matter any patient suffering from any other bypass of skin disease and the
maximum recommended usage by the drug manufacturer has also been exceeded by
Dr. Mukherjee. On 11th May, 1998, the further prescription of Depomedrol
without diagnosing the nature of the disease is a wrongful act on his part.
According to general
practice, long acting steroids are not advisable in any clinical condition, as
noticed hereinbefore. However, instead of prescribing to a quick acting
steroid, the prescription of a long acting steroid without foreseeing its
implications is certainly an act of negligence on his part without exercising
any care or caution. As it has been already stated by the Experts who were
cross examined and the authorities that have been submitted that the usage of
80-120 mg is not permissible in TEN.
114
Furthermore, after
prescribing a steroid, the effect of immunosuppression caused due to it, ought
to have been foreseen. The effect of immunosuppression caused due to the use of
steroids has affected the immunity of the patient and Dr. Mukherjee has failed
to take note of the said consequences.
After taking over the
treatment of the patient and detecting TEN, Dr. Halder ought to have
necessarily verified the previous prescription that has been given to the
patient. On 12th May, 1998 although `depomedrol' was stopped, Dr. Halder did
not take any remedial measures against the excessive amount of `depomedrol'
that was already stuck in the patient's body and added more fuel to the fire by
prescribing a quick acting steroid `Prednisolone' at 40mg three times daily,
which is an excessive dose, considering the fact that a huge amount of
"Depomedrol" has been already accumulated in the body.
Life saving `supportive
therapy' including IV fluids/ electrolyte replacement, dressing of skin wounds
and close monitoring of infection is mandatory for proper care of TEN patients.
Skin(wound) swap and blood tests also ought to be performed regularly to detect
the degree of infection. Apart from using the steroids, aggressive supportive
therapy that is considered to be rudimentary for TEN patients was not provided
by Dr.
115
Halder. Further `vital-signs'
of a patient such as temperature, pulse, intake- output and blood pressure were
not monitored. All these factors are considered to be the very basic necessary
amenities to be provided to any patient, who is critically ill. The failure of
Dr. Halder to ensure that these factors are monitored regularly is certainly an
act of negligence. Occlusive dressing were carried as a result of which the
infection had been increased. Dr Halder's prescription was against the Canadian
treatment protocol reference to which we have already made herein before. It is
the duty of the doctors to prevent further spreading of infections. How that is
to be done is the doctors concern. Hospitals or nursing homes where a patient
is taken for better treatment should not be a place for getting infection.
After coming to know that the
patient is suffering from TEN, Dr. Abani Roy Chowdhury ought to have ensured
that supportive therapy had been given. He had treated the patient along with
Dr. Halder and failed to provide any supportive therapy or advise for providing
IV fluids or other supplements that is a necessity for the patient who was
critically ill.
116
As regards, individual
liability of the respondent Nos 4, 5 and 6 is concerned, we may notice the same
hereunder. As regards AMRI, it may be noticed:
(i) Vital parameters of
Anuradha were not examined between 11.05.1998 to 16.05.1998 (Body Temperature,
Respiration Rate, pulse, BP and urine input and output)
(ii)I.V. Fuid not
administered. (I.V. fluid administration is absolutely necessary in the first
48 hours of treating TEN) As regards, Dr. Balaram Prasad, Respondent No. 5, it
may be noticed: (i) Most Doctors refrain from using steroids at the later stage
of the disease - due to the fear of Sepsis, yet he added more steroids in the
form of quick - acting "Prednisolone" at 40g three times a
day. (ii)He stood as second fiddle to the treatment and failed to apply his own
mind.
(iii)No doctor has the right
to use the drug beyond the maximum recommended dose.
117
So far as the judgment of the
Commission is concerned, it was clearly wrong in opining that there was no
negligence on the part of the hospital or the doctors. We are, however, of the
opinion, keeping in view the fact that Dr. Kaushik Nandy has done whatever was
possible to be done and his line of treatment meets with the treatment protocol
of one of the experts, viz. Prof. Jean Claude Roujeau although there may be
otherwise difference of opinion, that he cannot be held to be guilty of
negligence. D.5. CONCLUSION
We remit the case back to the
Commission only for the purpose of determination of quantum of compensation.
The principles of determining
compensation are well-known. We may place on record a few of them.
"28. We, therefore,
are of the opinion that what would have been the income of the deceased on the
date of retirement was not a relevant factor in the light of peculiar facts of
this case and, thus, the approach of the Tribunal and the High Court must be
held to be incorrect. It is impermissible in law to take into consideration the
effect of revision in scale of pay w.e.f. 1.1.1997 or what would have been the
scale of pay in 2002.
118
29. The loss of dependency,
in our opinion, should be calculated on the basis as if the basic pay of the
deceased been Rs. 3295/- X 2 = Rs. 6,590/-, thereto should be added 18.5%
dearness allowance which comes to Rs. 1219/-, child education
allowance for two children @
Rs. 240/- X 2 = Rs. 480 and child bus fair Rs. 160 X 2 = Rs. 320/- should have
been added which comes to Rs.
8,609/-.
30. From the aforementioned
figure 1/3rd should be deducted. After deduction, the amount of income comes to
Rs. 5,738/- per month [Rs. 8609/- - Rs. 2871/-] and the amount of compensation
should be determined by adopting the multiplier of 13, which comes to Rs.
8,95,128/-
31. In the present case, the
High Court itself has applied the multiplier of 13. We are of the opinion that
no interference therewith is warranted. We furthermore do not intend to
interfere with the rate of interest in the facts and circumstance of the
case."
Indisputably, grant of
compensation involving an accident is within the realm of law of torts. It is
based on the principle of restitution in integrum. The said principle provides
that a person entitled to damages should, as nearly as possible, get that sum
of money which would put him in the same position as he would have been if he
had not sustained the wrong. [See Livingstone v. Rawyards Coal Co. [ (1880) 5
AC 25 ].
119
When a death occurs the loss
accruing to the dependent must be taken into account; the balance of loss and
gain to him must be ascertained ; the position of each dependent in each case
may have to be considered separately [ See Davis v. Powell Duffrya Associated
Collieries Ltd. [ (1942) AC 601 ]. The said principle has been applied by this
Court in Gobald
Motor Service Ltd., Allahabad v. R.M.K. Veluswami, [AIR 1962 SC 1 ].
Loss of wife to a husband may
always be truly compensated by way of mandatory compensation. How one would do
it has been baffling the court for a long time. For compensating a husband for
loss of his wife, therefore, courts consider the loss of income to the family.
It may not be difficult to do when she had been earning. Even otherwise a
wife's contribution to the family in terms of money can always be worked out.
Every housewife makes contribution to his family. It is capable of being
measured on monetary terms although emotional aspect of it cannot be. It
depends upon her educational qualification, her own upbringing, status,
husband's income, etc.
This Court, we may notice,
has laid down certain norms for grant of compensation for the death of members
of family including the loss of child
120
"Broadly speaking
while fixing an amount of compensation payable to a victim of an accident, the
damages have to be assessed separately as pecuniary damages and special
damages.
Pecuniary damages are those
which the victim has actually incurred and which are capable of being
calculated in terms of money; whereas non-
pecuniary damages are those
which are incapable of being assessed by arithmetical calculations. In order to
appreciate two concepts pecuniary
damages may include expenses
incurred by the claimant: (i) medical attendance; (ii) loss of earning of
profit up to the date of trial; (iii) other material loss. So far non-pecuniary
damages are concerned, they may include (i) damages for mental and physical
shock, pain and suffering, already suffered or likely to be suffered in future;
(ii) damages to compensate for the loss of
amenities of life which may
include a variety of matters i.e. on account of injury the claimant may not be
able to walk, run or sit; (iii) damages for the loss of expectation of life,
i.e., on account of injury the normal longevity of the person concerned is
shortened; (iv) inconvenience, hardship, discomfort, disappointment,
frustration and mental stress in life."
121
The Commission must,
therefore, while arriving at the adequate compensation bear in mind all these
relevant facts and circumstances. E. ASSESSING CRIMINAL CULPABILITY
UNDER SECTION 304-A
E.1. CRIMINAL NEGLIGENCE
UNDER SECTION 304-A Criminal Medical Negligence is governed by Section 304A of
the Indian Penal Code. Section 304-A of the Indian Penal Code reads as under:-
"304-A. Causing death by negligence.- Whoever causes the death of any
person by doing any rash or negligent act not amounting to culpable
homicide, shall be punished
with imprisonment of either description for a term which may extend to two
years, or with fine, or with both." Essential ingredients of Section
304-A are as under:- (i) Death of a person
(ii) Death was caused by
accused during any rash or negligence act. (iii) Act does not amount to
culpable homicide. And to prove negligence under Criminal Law, the prosecution
must prove:
122
(i) The existence of duty.
(ii)A breach of the duty
causing death.
(iii) The breach of the duty
must be characterized as gross negligence.
[See R. v. Prentice and R v.
Adomako: [1993] 4 All ER 935] The question in the instant case would be whether
the Respondents are guilty of criminal negligence. Criminal negligence is the
failure to exercise duty with reasonable and proper care and employing
precautions guarding against injury to the public generally or to any
individual in particular. It is, however, well settled that so far as the
negligence alleged to have been caused by medical practitioner is concerned, to
constitute negligence, simple lack of care or an error of judgment is not
sufficient. Negligence must be of a gross or a very high degree to amount to
Criminal Negligence. Medical science is a complex science. Before an inference
of medical negligence is drawn, the court must hold not only existence of
negligence but also omission or commission on his part upon going into the
depth of the working of the professional as also the nature of the job. The
cause of death should be direct or proximate. A distinction must be borne in
mind between civil action and the criminal action.
123
The jurisprudential concept
of negligence differs in civil and criminal law. What may be negligence in
civil law may not necessarily be negligence in criminal law. For negligence to
amount to an offence the element of mens rea must be shown to exist. For an act
to amount to criminal negligence, the degree of negligence should be much high
degree. A negligence which is not of such a high degree may provide a ground
for action in civil law but cannot form the basis for prosecution. 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.
SHIFTING OF BLAME
It is also of some great
significance that both in the criminal as also the civil cases, the concerned
doctors took recourse to the blame game. Some of them tried to shirk their
individual responsibilities. We may in this behalf notice the following:
(i) In response to the notice
of Dr. Kunal, Dr. Mukherjee says that Depomedrol had not been administered at
all. When confronted
124
with his prescription, he
suggested that the reply was not prepared on his instructions, but on the
instruction of AMRI. (ii) Dr. Mukherjee, thus, sought to disown his
prescription at the first instance. So far as his prescription dated 11th May,
1998 is concerned, according to him, because he left Calcutta for attending an
international conference, the prescription issued by him became non-operative
and, thus, he sought to shift the blame on Dr. Halder.
(iii) Dr. Mukherjee and Dr.
Halder have shifted the blame to Dr. Prasad and other doctors. Whereas Dr.
Prasad counter-charged the senior doctors including the respondent No. 2
stating: "Prof. B.N. Halder (Respondent No. 2) was so much attached
with the day to day treatment of patient Anuradha that he never found any
deficiency in overall
management at AMRI so much so that he had himself given a certificate that her
condition was very much fit enough to travel to Mumbai..."
In answer to a question as to
whether Dr. Halder had given specific direction to him for control of day to
day medicine to Anuradha, he stated: "...this was done under the
guidance of Dr. Sukumar Mukherjee (Respondent No. 1), Dr. B.N. Halder
(Respondent No. 2) and Dr. Abani
Roychowdhury (Respondent No.
3)"
125
He furthermore stated that
those three senior doctors primarily decided the treatment regimen for Anuradha
at AMRI. (iv) Dr. Kaushik Nandy had also stated that three senior doctors were
incharge of Anuradha's treatment.
(v) AMRI states that the
drugs had been administered and nursing care had been given as per the
directions of the doctors. (vi) Respondent Nos. 5 and 6, therefore, did not own
any individual responsibility on themselves although they were independent
Physicians with Post Graduate medical qualifications. In `Errors, Medicine and
the Law', Cambridge University Press, p.14., the authors, Alan Merry and
Alexander McCall Smith, 2001 ed., stated: "Many incidents involve a
contribution from more than one person, and this case is an example. It
illustrates the tendency to blame the last identifiable element in the claim of
causation - the person holding the `smoking gun'. A more
comprehensive approach would
identify the
relative contributions of the
other failures in the system, including failures in the conduct of other
individuals..."
In R v. Yogasa Karan [1990] 1
NZLR 399, the New Zealand Court opined that the hospital is in a better
position to disclose what care was taken
126
or what medicine was
administered to the patient. It is the duty of the hospital to satisfy that
there was no lack of care or diligence. The hospitals are institutions, people
expect better and efficient service, if the hospital fails to discharge their
duties through their doctors, being employed on job basis or employed on
contract basis, it is the hospital which has to justify and not impleading a
particular doctor will not absolve the hospital of its responsibilities. [See
also Errors, Medicine and the Law, Alan Merry and Alexander McCall Smith, 2001
ed., Cambridge University Press, p.12] It is generally expected that very
senior doctors would behave responsibly, and they were entitled to take any
defence which is available to them but they should not resort to mudslinging.
This being a case where both sides being doctors, fair dealings were expected
from them. CUMULATIVE EFFECT OF NEGLIGENCE
A patient would feel the
deficiency in service having regard to the cumulative effect of negligence of
all concerned. Negligence on the part of each of the treating doctors as also
the hospital may have been contributing factors to the ultimate death of the
patient. But, then in a case of this nature, the court must deal with the
consequences the patient faced keeping in view the cumulative effect.
127
In the instant case,
negligent action has been noticed with respect to more than one respondent. A
cumulative incidence, therefore, has led to the death of the patient. It is to
be noted that doctrine of cumulative effect is not available in criminal law.
The complexities involved in the instant case as also differing nature of
negligence exercised by various actors, make it very difficult to distil
individual extent of negligence with respect to each of the respondent. In such
a scenario finding of medical negligence under section 304-A cannot be
objectively determined.
E.2. CONCLUSION
. In view of our discussions
made hereinbefore, we are of the opinion that for the death of Anuradha
although Dr. Mukherjee, Dr. Halder, Dr. Abani Roy Chowdhury, AMRI, Dr. B.
Prasad were negligent, the extent thereof and keeping in view our observations
made hereinbefore, it cannot be said that they should be held guilty for
commission of an offence under Section 304-A of the Indian Penal Code. We
furthermore in a case of this nature do not intend to exercise our
discretionary jurisdiction under Article 136 of the Constitution of India
having regard to the fact that a judgment of acquittal has been recorded by the
Calcutta High Court. F. OBSERVATIONS OF THE CALCUTTA HIGH COURT
128
We must express our agony in
placing on record that the Calcutta High Court in its judgment has made certain
observations which apart from being not borne out from the records, are also
otherwise highly undesirable. Some of the conclusions arrived at by the High
Court are not based on the findings emerging from the records. These
conclusions are as produced as under:
"28...On 24.5.1998,
it was noted "wounds were healing well, epidermal islands have
appeared over palms, soles and trunk .............. no obvious Pseudomonas
Colony like before". All these noting in the record of Breach Candy
Hospital indicate that her skin had started healing and undoubtedly, such
healing was outcome of effective treatment. This betterment of skin lesion in
the instant case could have been due to timely and effective treatment,
undoubtedly with steroids. This may indicate the benefit of treatment at
Calcutta... It was furthermore stated:
"32. In this
connection it is also to be mentioned that the death certificate alone cannot
rule out the possibility of accidental suicidal or homicidal cause of the
death. A post-mortem examination alone could rule out the possibility of these
three kinds of death....On the other hand, the
improvement of Anuradha as
noticed before
25.5.1998 indirectly supports
the argument that the treatment at Calcutta was at best not wrongly
directed."
129
....
"119...But in the
present case, it indicates that there was no fixed treatment, and no faith was
reposed on any of the accused doctors and over- jealousness of the patient
party practically brought the untimely death of a young lady.
The High Court observed that
Anuradha died because of interference of Kunal. Such an observation was made on
the basis of some representations although his name did not appear in the
records of AMRI. It was stated:
"124. At the close,
it is to be pointed out that Dr. Kunal Saha did not repose faith on any
institution as can be
ascertained from his conduct discussed hereinabove in details. He also failed to
take the investigating agency of this country into confidence and in paragraph
25 of the complaint, it was noted --"that the accused persons are
highly influential and are likely to interfere with investigation and as such,
complainant would be left with no other alternative than to institute the
complaint before the highest magistracy of the Sessions Division of
24-Paraganas (South)". It is rightly contended by the learned counsel
appearing on behalf of the accused doctors that such an action may lead to two
conclusions :--
(i) The complainant has no
confidence on the police investigation of this country, or,
(ii) The police investigation
could unveil
some untold facts or
circumstances leading to the untimely death of Anuradha.
130
Be that as it may, by filing
a complaint for the purpose of proving the rash and negligent act against the
three specialized doctors, the
complainant party
intentionally took upon
themselves a heavy burden of
proving the case which they actually failed to discharge. So it was claimed to
be an uneven battle, which was
declared by the complainant
party without being aware of the law on the subject and the
consequences. It is needless
to mention that now-a- days there is an attempt amongst the patient party to
lodge complaint against the attending doctors for the purpose of their
punishment. On several occasions patient party also ransacked the hospitals or
chambers of the doctors and mishandled them on the plea of negligence to duty.
In this way the doctors have been suffering from fear psychosis." We
must also express our great dissatisfaction when the Calcutta High Court
stated:
"121. But it is
sufficiently clear that a man of the medical field now residing at United
States with family after acquiring citizenship of that country has challenged
the conduct and integrity of the three Professors. In this connection, I deem
it proper to quote a remark of Lord Denning MR in White House v. Jordan
(supra);
"................
Take heed of what has happened in the United States. 'Medical malpractice'
cases there are very worrying, especially as they are tried by juries who have
sympathy for the patient and none for the doctor who is insured. The damages
are colossal. The doctors insure but the premiums become very high ; and these
have to be passed on in fees to the patients. Experienced practitioners
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are none to have refused to
treat patients for fear of being accused of negligence. Young men are even
deterred from entering the profession because of the risks involved. In the
interests of all, we must avoid such consequences in England. Not only must we
avoid excessive damages. We must say and say firmly, that in a professional
man, an error of judgment is not negligent ..............". Further
the statement made by the High Court that the transfer certificate was forged
by the patient party is absolutely erroneous, as Dr. Anil Kumar Gupta deposed
before the trial court that he saw the transfer certificate at AMRI's office
and the words "for better treatment" were written by
Dr.Balaram Prasad in his presence and these words were written by Dr.Prasad,
who told it would be easier for them to transport the patient. In a case of
this nature, Kunal would have expected sympathy and not a spate of irresponsible
accusation from the High Court. G. SUMMARY
For the reasons
aforementioned, the criminal appeals are dismissed. As regards the civil
appeal, the matter is remitted to the National Commission for determining the
compensation with a request to dispose of the matter as expeditiously as
possible and preferably within a period of six
132
months from the date of
receipt of a copy of this judgment. Civil Appeal is disposed of accordingly.
We, keeping in view the stand
taken and conduct of AMRI and Dr. Mukherjee, direct that costs of Rs.
5,00,000/- and Rs. 1,00,000/- would payable by AMRI and Dr. Mukherjee
respectively. We further direct that if any foreign experts are to be examined
it shall be done only through video conferencing and at the cost of respondents.
...............................J.
[S.B. Sinha]
................................J.
[Deepak Verma]
New Delhi;
