TaxTMI 
TaxTMI 
2009 (8) TMI 1229
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....though a doctor by profession, Kunal has been engaged in research on H.I.V/ AIDS for the past 15 years. 2. 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 supervis....
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....der dated 29th May, 2002 found Respondent Nos. 1 and 2 guilty of commission of an offence under Section 304A 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. 11. The West Bengal Medical Council dismissed the complaint filed by Dr. Kunal by its order dated 1st July, 2002. 12. On 25th May, 2003 the complainant-Kunal withdrew O.P. No. 179/2009 filed before the Commission against the doctors/Breach Candy Hospital. 13. 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 acq....
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.... 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 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 accordin....
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....e 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 304A 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 17. 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 bee....
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....(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 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....
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....d 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 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....
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.... 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 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 ....
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.... (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 use of Corticosteriods and may cause a chance of infection in any patient. He admitted that steroids should not....
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.... (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. (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 Mum....
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....Section 304A, coupled with the fact that the penalty imposed therefore 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. (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 ....
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....il, 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 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 27. 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....
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....y 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. 28. Allegation that he had also taken active part in the treatment of Anuradha is not established from the record. 29. There is nothing on record to show that Dr. Halder while writing the prescription had any prior discussion with Dr. Abani Roychowdhury. The endorsement that the prescription was a joint prescription of Dr. Halder and Dr. Roychowdhury was admittedly made by Dr. Kunal Saha himself. 30. 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 31. 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....
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....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. 34. 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. 35. Even under the law of tor....
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....gence on the part of the doctors. C. DETERMINATION OF CERTAIN SALIENT POINTS OF LAW AND FACTS C.1. EXPERT EVIDENCE 42. 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. (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....
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.... form his independent judgment by the application of this criteria to the facts proved by 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 46. 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. 47. Kunal would argue that this ....
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....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 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 evi....
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....f 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)] 55. 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. 56. 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. 57. This Court in J.J. Merchant (Dr) v. Shrinath Chaturvedi (2002) 6 SCC 635, held as under: 19. It is true that it i....
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.... 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 59. For determining the question as to whether the respondents herein are guilty of any negligence, we may notice the treatment protocol. 60. 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. 61. 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 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 ....
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....ng 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. 67. 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. 68. 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 ....
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....nged 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 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 a....
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....ing - Encourage oral fluids - Hyperbaric oxygen, aerosols, bronchial aspiration, physical therapy, therapies for herpes and mycoplasma. 76. 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 77. Attention has also been drawn to the protocol treatment on behalf of the respondents. They have placed reliance on a number of authorities to 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: Th....
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....ded usage is 40 to 120 mg at intervals of at least one week and a daily dose of 80 mg can never be used. 81. 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 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. 82. 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 ....
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....eing 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 prednisolone peaks of approximately 21.5 micrograms/ 100 ML. After intra-articular 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 prednisolo....
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.... 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". 89. 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 immunosuppression, 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. 90. 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 we....
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....ifficulty 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) 96. 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. 97. 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 97. 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. 98. Respondent No. 1 examined Anuradha at her residence in the evening of 26th April, 1998.....
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....esions 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. 103. 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 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 theref....
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....ons. I would not give more than 40 mg /day Kg. body weight. 107. 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 suf....
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....ch may in turn lead to septisis. 113. 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 114. 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 questio....
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....y 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 118. 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 ....
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....tages. 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%. 121. 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 clear that they did not have any expertise in the field and therefore they ought not to have behaved as experts 122. We are, therefore, of the opinion that the universally accepted medicated treatment protocol had also not been fo....
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....bric of Negligence, must have due regard to the fatal 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. 129. In B. Nagabhushanam v. State of Karnataka (2008) 5 SCC 730, this Court held as under: 12. Reliance placed by Mr. Kulkarni on Syad Akbar v. State of Karnataka 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 circ....
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.... 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 Kunal 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. 133. 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: 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 medication 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 regardi....
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....n 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. 140. 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. 141. 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. 142. 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. Kunal, however, submitted that the said antib....
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....roceeding 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 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. 147. 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 aga....
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.... noteworthy that standard of proof as also culpability requirements under Section 304A 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 304A. 152. Bearing this in mind, we further elaborate on both the questions separately. D.1. LAW OF NEGLIGENCE UNDER TORT LAW 153. 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] 154. 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. ....
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...., 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.... 159. 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. 160. 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: 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 satisfie....
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....isclosure 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. 164. 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 ....
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....elating 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. 169. Dr. Udwadia made a comment that transportation of Anuradha from Kolkata 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. D.3. LEGITIMATE EXPECTATION 170. 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 muc....
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....ble 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 175. 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. (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 r....
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....e 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. 182. 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. 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. 183. Occlusive dressing were carried as a result of which the infec....
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....e well-known. We may place on record a few of them. 190. In Oriental Insurance Company Limited v. Jashuben and Ors. (2008) 4 SCC 162, this Court held: 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. 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....
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....sessed 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. 196. The Commission must, therefore, while arriving at the adequate compensation bear in mind all these r....
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.... 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 204. 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 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, acc....
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....ack 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] 207. 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 208. 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....
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....ccidental 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. 33...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. 213. 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 a....