MALAY KUMAR GANGULY v. DR. SUKUMAR MUKHERJEE AND OTHERS

Citation: [2009] 13 S.C.R. 1

Court: Supreme Court of India

Bench: S.B. SINHA, DEEPAK VERMA

Case summary

MALAY KUMAR GANGULY v. DR. SUKUMAR MUKHERJEE AND OTHERS.pdf

Judgment text

[2009] 13 (ADDL. ) S. C. R. 1 MALAY KUMAR GANGULY v. DR. SUKUMAR MUKHERJEE AND OTHERS (Criminal Appeal Nos. 1191-1194 of 2005) AUGUST 7, 2009 [S. B. SINHA AND DEEPAK VERMA, JJ. ] CONSUMER PROTECTION ACT, 1986/PENAL CODE, 1860: Sections 12, 131304-A - Medical negligence - Criminal negligence - Patient treated by various doctors/Hospitals - Death - Allegation of negligence - Negligence must be of gross or a very high degree to amount to criminal negligence - To prosecute a medical professional for negligence under 0 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 - The complexities involved in the case as also differing nature of negligence exercised by various hospitals and doctors make it difficult to distil individual extent of negligence with respect to each of them - As such medical negligence under Section 304A cannot be objectively determined - An act which may constitute negligence or even rashness under torts may not amount to same under Section 304-A /PC - If a representation is made by a doctor that he is a specialist and ultimately it turns out that he is not, deficiency in service would be presumed.

Provisions of Evidence Act not applicable to Consumer Commission - Commission to merely comply with principles of natural justice and the procedure laid down under Sections 12, 13 and the Rules made under tne Act - Certain doctors held negligent - Due to their negligent action, patient died as a result of cumulative incidence - But doctrine of cumulative ~ effect not available under criminal law - However, contributory negligence cannot be attributed - Theory of informed consent - Discussed - In the Civil Appeal, matter remitted to National Consumer Commission for determining compensation preferably within six months - Constitution of India, Articles 21, 136. COSTS - Imposition of- In view of the stand and conduct of certain parties, higher cost directed to be paid. LEGAL DOCTRINES/PRINCIPLES: Principle of res ispa loquitur - Not strictly applicable in a criminal case. Doctrine of legitimate expectation - Applicability of - Administrative Law.

Doctrine of Cumulative effect - No available in criminal , law. 1 The Criminal Appeals were preferred against the order of the High Court and the Civil Appeal arose against the judgment and order of the National Consumer Commission. The matters relate to alleged criminal ~ negligence/medical negligence. The patient, . settled ·in USA, came to India and suffered some health problem and was treated in Calcutta and later in Bombay. The High Court dismissed the Criminal Revision Petitions filed by the complainants and allowed the appeals filed by the Respondent-Doctors, thus setting aside their conviction and sentence. -1. Dismissing the Criminal Appeals and remitting the ,matter in the Civil Appeal to the National Consumer ' Commission, the Court . MUKHERJEE AND ORS. HELD: 1. The court for the purpose of arriving at a decision on the basis of the opinions of experts must take into 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 s .. • 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. [Para 1OJ (58-E-F] State of H. P. v. Jai Lal and others, (1999) 7 sec 280, relied on. 2. 1. It is true that ordinarily if a party to an action does not object to a document being taken on record and the Y 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. [Para 12] (60-0-E] 2. 2.

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 procedure laid in that behalf, therefore, must be strictly complied with. In the instant case, Exhibits 4, 5 and 6 are not admissible in evidence in the criminal trial. The said exhibits, however, are admissible before the consumer court. :[Paras 12 and 13] [60-F-H; 61-A] 2. 3. 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 s the principles of natural justice, s'ave 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. [Para 13] [62-G-H; 63-A-B] 2. 4. The opinions of the experts as contained in the Exhibits P4, PS and PG 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 opinions are not correct.

The concerned respondents in their depositions before the Commission ~ I also did not challenge the correctness or otherwise of the ·'f said opinions. Even otherwise the deficiencies pointed out therein are explicit from the records. [Para 13] (63-0- E] R. V. E. Venkatachala Gounder v. Arulmigu Viswesaraswami & V. P. Temple, (2003) 8 SCC 752; Bharat Bank Ltd. v. Employees ofthe Bharat Bank Ltd. 1950 SCR 459; Nahar Industries Ltd. v. Hong Kong &Shanghai Banking Corporation etc. (2009) 12 SCR 54 and J. J. Merchant (Dr) -v. Shrinath Chaturvedi, (2002) 6 SCC 635, relied on. MUKHERJEE AND ORS. 3. 1. Toxic Epidermal Nnecrolysis (TEN) 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. [Para 14] [64-G-H; 65-A] 3. 2. 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 spectrum of symptoms. The treatment protocol for TEN has undergone considerable change throughout the y world. [Para 14] [65-C-D] 3. 3. This Court would, in view of the difference of opinion amongst experts, proceed on the assumption that steroid can be administered in the TEN patients. All of them are one in stating that their opinion is subject to the instructions given in the package insert of the medicine. 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. [Para 14] [74-D; 75- 8-C; 77-8] 3. 4.

There is 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 Advanced Medicare Research Institute (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 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 injec~tion 80 -. tmg 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. [Para 15] [77-C". 'G] 0 'f 3. 5. No symptomatic therapy was administered. No emergency care was provided. Dr. Halder himself accepted that the same was necessary. AMRI records demonstrate how abysmal the nursing care was. This Court understand that there was no burn unit in AMRI and there was no burn uriit 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 virtual! ~made an ICU. Entry Restrictions were strictly adh"e~ d to. Hyg. iene 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 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 MUKHERJEE AND ORS. specialist in his prescription noticed blisters around the lips of the patient which led 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). s· 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 ev~n did not maintain its records properly. The nurses reports clearly show that from 13th May onwards even the routine checkups were not done. [Para 16] [79-8-H; 80-A-C] "Dermatology in General Medicine ( Fitz Patrick's)" (5th y Ed), and Comprehensive Dermatological Drug Therapy, referred to. 4:1. 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 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. This Court may not go into the said question, but 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 alm. ost 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. [Para 18] [85-0-H; 86-A-B] + 4. 2. 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. -y- 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. [Para 18] [86-C-D] 4. 3. Those who support use and administration of steroid do so with note of caution. They in no uncertain -f 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 MUKHERJEE AND ORS. twice a day and Wysolone. It was continued upto 13th May, 1998, nobody even thought of stopping the injection. Dr. Halder although stopped Depomedro! 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 in his evidence explained the difference l:letween 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 deal 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~ (Para 19] (86-G-H; 87-A-G] 5. 1. The High Court as also the Commission principally proceeded on the premise that the respondents are not liable either for any act of criminal misconduct or negligence because of cleavage of opinion.

The cleavage of opinion, if any, is between prosteroid group and anti-steroid group. This Court has proceeded to determine the question of negligence on the part of the respondents 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, would not lead to the conclusion that the respondents are guilty of gross negligence. [Para 19] [88- C-F] 5. 2. Assuming that the mortality rate is very high in TEN patients, this Court feels 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 clear that they did not have any expertise in the field and therefore they ought not to have behaved as experts. This Court is, therefore, of the opinion that the universally accepted -y· medicated treatment protocol had also not been followed. There may well be a difference of opinion on the course o. f 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 -f· of steroids as also lack of judgment. [Para 19] [90-E-H; 91- A] Mr. Fitz Patrick : Dermatology in General Medicine (5th Edition), ref~rred to. 6. Kunal had not only obtained opinion of a large number of ~xperts, he examined some of them including \:r Dr. Anil Shirlde 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 referred to earlier. The onus of proof, therefore, on a situation of this nature shifted to the respondents. / MUKHERJEE AND ORS. This Court is not oblivious of the fact that the principle + of res ipsa /oquitur may not be strictly applicable in a criminal case, although certain authorities suggest application of the said principle. [Para 20] [91-8-0] Spring Meadows Hospital v. Harjo/ Ahluwalia, (1998) 4 8 SCC 39; Rattan Singh v. State of Punjab, (1979) 4 SCC 719; B. Nagabhushanam v. State of Karnataka, (2008) 5 SCC 730 and Nizam Institute of Medical Sciences v. Prasanth S. + Dhananka and others, 2009 (7) SCALE 407, referred to. 7. 1. 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. Nursing Superintendent being a professional cannot take this plea. Moreover, the same is not borne out of records at AMRI. Even if this statement is assumed 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. [Para 21] [94-C-H; 95-A-B] 7. 2. 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 them individually, interference by Kunal, so far as they are concerned, would amount to hearsay evidence and not direct evidence. [Para 21] [95-B-D] -+- 7. 3. 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. [Para 21] [95-D-F] 7. 4. 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. It is noticed 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 -t· 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'. 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. Uawadia to administer the said injection.

This discussion between them has also been recorded. Spme adverse remarks have also been recorded with MUKHERJEE AND ORS. (' 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. 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. 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. [Para 21) (95-F-H; 96y A-E] - 7. 5.

Respondents also sought to highlight on the number of antibiotics which are said to have been administered by Kunal to Anuradha while she was in AMRI contending that the said antibiotics were • necessary. Kuna! , however, submitted that the said antibiotics were prescribed by the doctors at AMRI and he did not write any prescription. It is, however, assumed that the said antibiotics had been administered by Kunal ~ on his own, but it now stands admitted that administration of such antibiotics was necessary. It will be pertinent to note that even if one agrees that there was interference by Kuna! Saha during the treatment, it in no way diminishes the primary responsibility and default in duty on the part of the defendants. lnspite 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. [Para 21) [96-F-H; 97-A-B] ... 7. 6. Proceedin~ 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. It has not been pointed out as to what difference would have been made if otb_ers 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 tha"! 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. [Para 22] (98-A-D] y ... 7. 7.

Kunal issued notices to a large number of persons but withdrew the cases against most of them. In the first notice there were a$ many as 26 addresses and in the complaint filed before the National Commission, • there were 19 addresses. Withdrawal of cases agaimst some of them, is not of much significance. The Directors of AMRI were impleaded as parties. Cases against them had also been withdrawn and, most of them were liable -jin their personal capacity. Dr. Kunal says thatr 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 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 -4- .

by i~elf, thus, might not be a contributory factor although '-::existence thereof was highly desirable keeping in view the treatment protocol. [Para 22] (98-E-H; 99-A] '\ MUKHERJEE AND ORS. 7. 8. Medical negligence cannot be attributed for not + rendering a facility which was not available. If hospitals knowingly fail to provide some amenities that a{e fundamental for the patients, it would certainly amount to medical malpractice. A hospital not having basic facilities like oxygen cylinders would not be excusable. [Para 22] [99-B-C] 8. 1. 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, IPC. [Para 23) [99-G-H; 100-A-B] 8. 2. 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. (Para 23] (100-F-G] 8. 3. 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 effect or some reaction is anticipated, he should be informed thereabout. · it was not done in the instant ~ase. [Para 24) - (103-D] 8. 4.

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 b~sed 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. 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 0 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. [Para· 24] [104-C-F] 8. 5. So far as transportation of Anuradha from Kolkata to Mumbai is concerned, there is a Certificate given by Dr. Baidyanath Halder correctness whereof, except for the words "for better treatment" is not in di~pute. Dr. Halder does not contend that the contents of the same are wrong. He merely says that the same was issued atthe 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. Bairam Prasad and/or any other doctor.. Why he had taken the burden of issuing such a certificate is not explained.

This Court is of the opinion that a conclusion as to whether the words "for better treatment" have been inserted in the ~aid certificate or not or the same was done at the instance of Kunal, is wholly unnecessary. The only MUKHERJEE AND ORS. question which arises is as to whether there was any risk + of Anuradha developing infection due to exposure during transpo~c;ttion. She was flown to Mumbai b~· an exclusive chartered flight (air ambulance) of East-West Rescue of Delhi. 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. It appears that East West Rescue of Delhi, which provided air ambulance, must have taken all necessary precautions.

[Para 25) [104-G-H; 105-A-G] 8. 6. Dr. Udwadia made a comment that transportation of Anuradha from Kalka. ta to Mumbai may have exposed her to infection. He, however, added 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. [Para 25) (105-G-H; 106-A-B] Municipal Corpn. Of Greater Bombay v. Laxman Iyer, (2003) 8 sec 731, relied on. Martin F. D' Souza v. Mohd. lshfaq, (2009) 3 SCC 1 ar;id Jacob Mathew V. State of Punjab, (2005) 6 sec 1, referred .. to.

- Bo/am v. Friern Hospital Management Committee, + (1957) 2 All ER 118; Maynard v. West Midland Regional Health, Authority, (1985) 1 All ER 635 (HL); Rogers v. Whitaker: (1992) 109 Aus LR 625; Roenbreg v. Percival 2001 HCA 18; Rib/ v. Hughes: (1980) 114 DLR 3d 1; Bolitho v. City and Hackney Health Authority, (1997) 4 All ER 771 (HL); Sidaway v. Board of Governors of Beth/em Royal Hospital and the Maudsley Hospital, [1985] All ER 643; Canterbury v. Spence, 464 F. 2d 772 (D. C. Cir. 1972), cert. denied, 409 -+ U. S. 1064 (1972); Cobbs v. Grant, 8 Cal. 3d 229, 104 Cal. Rptr. 505, 502 P. 2d 1 (1972) and Hamiltorn v. Hardy, 37 Colo. App. 375, 549 P. 2d 1099 (1976), referred to. Law of Torts, Ratanlal &Dhirajlal Twenty-fourth Edition 2002, at p. 441-442 and Adavanced Law Lexicon, P Ramanatha Aiyar, 3rd ed. 2005, p. 3161, referred to. .. ,... 9. 1. 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 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. [Para 26] (106-D-F] 9. 2. The standard of duty to care in medical services -- MUKHERJEE AND ORS.

may also be inferred after factoring in the position and stature of the doctors concerned as also the hospital; the premium stature of services avail~ble t0 the patient certainly raises a legitimate expectation. This Court is 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, would not be quite out of place. [Para 26] [106-G-H; 107-A] 9. 3. 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 it was urged that it is not expected that in AMRI regular daily medical check-up would not have been conducted, 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 ultimately it turns out that he is not, deficiency in medical services would be presumed. [Para 26] [107-8- C] Smt. Savita Garg v. The Director, National Heart Institute 2004 (8) SCALE 694 : (2004) 8 SCC 56, referred to. 10. 1. 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 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. 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 -tpermissible in TEN. [Para 27] [108-G-H; 109-A-C] 10. 2. 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 y take note of the said consequences. [Para 27] [109-D-E] .. 10. 3.

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 =--i the patient. On 12th May, 1998 althougl:l '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 1more 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 a"lready 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 pr:ovided by ,Dr. Halder. Further { MUKHERJEE AND ORS. 'vital-signs' of a patient ~uch 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 moni~ored regularly is certainly an act of negligence. [Para 27] [109-E-H; 110-A-B] 10. 4. Occlusive dressing were carried as a result of which the infection had increased. Dr Halder's prescription was against the Canadian treatment protocol. 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. [Para 27] [110-C-D] 10. 5.

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. [Para 27] [110-E] 11. 1. 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) l. V. Fluid not administered. (l. V. fluid administration is absolutely necessary in the first 48 hours of treating TEN) [Para 27] [110-F-H; 111-A] 11. 2. As regards, Dr. Balaram Prasad, 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. [Para 27] [111-A-D] -+-· 11. 3. 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. However, 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 y 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. [Para 27] [111-D-E] 12. 1. The matter is remitted back to the Commission only for the purpose of determination of quantum of compensation. [Para 28] (111-F] 12. 2. Loss of wife to a husband may always be truly -+compensated by way of monetary 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 MUKHERJEE AND ORS. income, etc. [Para 28) [113-8-D] + 12. 3. The Commission must, therefore, while arriving at the adequate compensation bear in mind all these relevant facts and circumstances. [Para 28] (114-D] Oriental Insurance Company Limited v. Jashuben and Others (2008) 4 SCC 162; Gobald Motor Service Ltd. , Allahabad v. R. M. K. Veluswami, AIR 1962 SC 1; Lata Wadhwa v. State of Bihar; R. K. Malik and Anr. v. Kiran Pal & Ors. 2009 (8) SCALE 451 and R. O. Hattangadi v.

Pest Control (India) (P) Ltd. AIR 1995 SC 755, referred to. Livingstone v. Rawyards Coal Co. (1880) 5 AC 25; Davis v. Powell Duffrya Associated Collieries Ltd. (1942) AC 601 and R. v. Prentice and R v. Adomako [1993) 4 All ER 935, referred to. 13. 1. 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 th~ 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. [Para 29] (115-E-G] 13. 2.

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 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. [Para 29] [115-H; 116-A-C] 13. 3. 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 tG-Shirk their individual responsibilities. [Para 30] [116-D] 13. 4. 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. [Para 30] [118-E] R v. Yogasa Karan [1990] 1 NZLR 399, referred to. + 'Errors, Medicine and the Law', 'by Alan Merry and t Alexander ~cCall Smith, Cambridge University Press, 2001 ed. p. 14. , referred to. 14. 1. 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.

[Para 31] [118-F-G] MUKHERJEE AND ORS. 14. 2. 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. . 1n such a scenario -t finding of medical negligence under section 304-A cannot be objectively determined. [Para 31] [118-G-H; 119-A-B] 14. 3. This Court is 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 the 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. Furthermore in a case of this nature this Court does not intend to exercise its discretionary jurisdiction under Article 136 of the Constitution of India having regard to the fact that judgment of acquittal has been recorded by the Calcutta High Court. [Para 32] [119-C-D] -~ 15. This Court expresses 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. [Para 33] [119-E-F] 16. Keeping in view the stand taken and conduct of AMRI and Dr. Mukherjee, it is directed that costs of Rs. 5,00,000/- and Rs. 1,00,000/- would be payable by AMRI :~ and Dr. Mukherjee respectively.

It is further directed that if any foreign experts are to be examined it shall be done only through video conferencing and at the cost of respondents. (Para 34) (123-A-B] Case Law Reference: (1999) 1 sec 280 relied on Para 10 (2003) 8 sec 152 relied on Para 13 1950 SCR 459 relied on Para 13 (2002) s sec 635 relied on Para 13 (2009) 12 SCR 54 relied on Para 13 (1998) 4 sec 39 referred to Para 20 (1979) 4 sec 119 referred to Para 20 (2008) 5 sec 130 referred to Para 20 )' 2009 (7) SCALE 407 referred to Para 20 (2003) 8 sec 731 relied on Para 23 ,... :r. (2009) 3 sec . 1 referred to Para 23 (2005) 6 sec 1 referred to Para 23 (1957) 2 All ER 118 referred to Para 23 (1985) 1 All ER 635 (HL) referred to Para 23 (1992) 109 Aus LR 625 referred to Para 23 2001 HCA 18 referred to Para 23 (1980) 114 DLR 3d 1 referred to Para 23 (1997) 4 All ER 771 (HL) referred to Para 23 (1985) All ER 643 referred to Para 24 -.. /_ 464 F. 2d 772 (D. C. Cir. 1972), cert. denied, 409 U. S.

1064 (1972) referred to Para 24 MUKHERJEE AND ORS. . 8 Cal. 3d 229, 104 Cal. Rptr. 505, + 502 p. 2d 1 (1972) referred to Para 24 37 Colo. App. 375, 549 P. 2d 1099 (1976) referred to Para 24 2004 (8) SCALE 694 : (2004) 8 sec 56 referred to Para 26 (2008) 4 sec 162 referred to Para 28 AIR 1962 SC 1 referred to Para 28 (2001) 8 sec 191 referred to Para 28 2009 (8) SCALE 451 referred to Para 28 AIR 1995 SC 755 referred to Para 28 (1880) 5 AC 25 referred to Para 28 (1942) AC 601 referred to Para 28 [1993] 4 All ER 935 referred to Para 29 [1990] 1 NZLR 399 referred to Para 30 CRIMINAL APPELLATE JURISDICTION : Criminal Appeal Nos. 1191-1194 of 2005. From the Judgment & Order dated 19. 03. 2004 of the High Court of Calcutta in C. R. A. No. 83 & 84 of 2003, 295 & 1856 of 2002. WITH C. A. No. 1727 of 2007. Kail ash Vasdev, Bhaskar P. Gupta, R. Venkatraman, Shashi Bhushan Kumar, K. M. Singh, Dr. Kuna! Saha, Appellant in person, Sanjay Kumar Ghosh, Aroop Banerjee, Ranjan ·A Mukherjee, Rupali S.

Ghosh, Shantanu Bhowmick, Satish Vig, K. L. Taneja, Avijit Bhattacharjee, Saumya Kundu, Subrata Biswas, Premashish Choudhary, Jaidip Kar, Rana Mukherjee, Suchit Mohanty, Anupam Lal Das, Lalit Bhasin, Bina Gupta, Nina Gupta, Tulika Mukherjee, Swigin George for the appearing parties. The Judgment of the Court was delivered by 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 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, Kuna! has been engaged in research on H. 1. 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 ' MUKHERJEEAND ORS. [S. B. SINHA, J. ] 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 """' 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 3oth 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, 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 Ha. Ider 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. large number of documents were also marked as exhibits. y 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 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-Kuna! 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 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 't 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: 2. Dr. Kuna! 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. A (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 '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 eviden. ce 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 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 -a'ml 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 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. 8 (xii) The Expert doctors has categorically stated that malpractice 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 )C 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 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 ·- I 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. (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 3. 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-a-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. Mr. Ranjan Mukherjee, learned counsel appearing on --+ behalf of Respondent No. 3 contendeq :- ! (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 . :y- 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. t (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. • . , i . , (vi) So far as the certificate of transfer of the patient is tr concerned, the same admittedly being interpolated, ' r' 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 plausible one. B. PROCEEDINGS 8. 1. TRIAL COURT PROCEEDINGS 4. 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, ~ 1988. He left India on 11th May, 1998 which was within the knowledge of her husband. He treated 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 treat:-i1CJnt 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 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 AMR! 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 --4 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 MUKHERJEE AND ORS. [S. S. SINHA, J. ] medicine for one day as 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 Yfor 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. 1 ' Aloke Majumdar attached to the B. R. Singh Railway Hospital, "" Sealdah as Senior Divisional 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. ,. Ill. Re : Dr. Sukumar Mukherjee: + (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 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 f 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 'lmmunosuppression' 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 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 8 the following reply: "...

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.

(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 y 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 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. (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 (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 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 Or. 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. 'r (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 ta--Bombay likely to y 0 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. (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. 8. Prasad wrote to continue as 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 I 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 death but was only a tentative one. It was silent about the antecedent cause or other significant conditions- 'Contributing to the dea:h. 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-avis the link thereof with the treatment at Kolkata and that too specially at the hands of Respondents 1 to 3 was not proved. (vi) lmw~vement 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 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. f 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. Mukheqee·s prescription was not taken·into consideration. In fact it was indicated that the patient was being treated 8 by somebody else whose identity had not been disclosed. (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 rincorrect 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 -icarried 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. -+ (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 fllll treatment protocol for allergic disorders. In fact, t 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 '1 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 play in the treatment of 0() Anuradha which would be evident from the record 0\) of AMRI. €>() c! ) (ii) There is nothing on record to show that the ~ prescription of Prof. Halder was given effect to. oJ (iii) Occlusive dressings were carried as a result of which infection had been increased (iv) He had suggested Benad