2009 Supreme(SC) 1431

Supreme Court of India
THE HONOURABLE MR. JUSTICE S.B. SINHA & THE HONOURABLE MR. JUSTICE DEEPAK VERMA
Malay Kumar Ganguly & Another
Versus
Dr. Sukumar Mukherjee & Others
CRIMINAL APPEAL NOS.1191-1194 OF 2005 WITH CIVIL APPEAL NO. 1727 OF 2007
Decided on : 07-08-2009

IMPORTANT POINTS
Expert evidence is advisory in nature.
Merely non-objection to a document does not make it admissible in criminal proceedings.
Provisions of Indian Evidence Act, 1872 not applicable to consumer cases.
Principle of res ipsa loquitur may not strictly apply in a criminal case. However it applies in civil cases.
Non-joinder of parties is not a ground to dismiss the petition unless prejudice is caused to the other party.
Medical negligence cannot be attributed for not rendering a facility which was not available. On the other hand failure of hospitals knowingly to provide some amenities that are fundamental for the patients, would amount to medical malpractice.
Negligence, strictly, is nonfeasance and not malfeasance.

Headnote:(a) Indian Evidence Act, 1872 – Section 45 – Expert evidence – Advisory in nature – Should be interpreted as any other evidence. (Para 45)

       (1999) 7 SCC 280 – Relied upon

       (b) Criminal trial – Evidence – Admissibility – Estoppel – A party not objecting to a document being brought on record – Estopped and precluded from questioning the admissibility thereof at a later stage – However unless author of document is examined and cross-examined, contents thereof cannot be held to have been proved – Merely non-objection to a document does not make it admissible in criminal proceedings – Article 21, Constitution of India – Instantly, Exhibits 4, 5 and 6 not admissible in criminal proceedings. (Para 50, 51)

       (c) Consumer Protection Act, 1986 – Section 13(3) – Provisions of Indian Evidence Act, 1872 not applicable – Principles of natural justice apply save and except as in section 13(4) – National Commission though having trappings of civil court, not a civil court – Expert opinion – Rendered on basis Respondents not questioning the documents – Not producing any expert witness to counter the opinion – Documents admissible before the Commission. (Para 52, 54, 55, 57, 58)

        (2003) 8 SCC 752; 1950 SCR 459; Civil Appeal arising out of SLP (C) No. 24715 of 2008; (2002) 6 SCC 635 – Relied upon

       (d) Consumer Protection Act, 1986 – Section 12 – Medical negligence – Patient-deceased diagnosed by Respondent no. 1 on 26th April to be suffering from `Anglo-Neurotic Oedema with allergic vasculitis – Depomedrol administered in excessive doses of 80 mg from 7th May – Such dose not recommended in any clinical condition – Instructions in the packet insert of Depomedrol not followed – Overdose resulting in Septicemia causing death of the patient – On 11th May, 1998 patient-deceased admitted in AMRI, respondent no. 4 – Diagnosed to be suffering from TEN – Depomedrol considered a real risk in TEN – No supportive therapy given – No emergency care provided – Nursing care abysmal – No nasogastric tube given despite bad mouth condition – No routine pathological examination carried out – Even routine check-ups not done from 13th May onwards – Admitted to Breach Candy Hospital on 17th May – Died on 28th May – Nosocomial infections – Depomedrol first led to immunosuppression and in turn lead to septisis – Universally accepted medicated treatment protocol not followed – Respondents did not have expertise in the field and ought not to have behaved as experts. (Para 122, 123, 124)

       (e) Criminal trial – Medical negligence – Burden of proof – Appellant producing large number of expert opinions also examining some of the experts – Respondents not examining any expert – Burden of proof shifts to respondents – Principle of res ipsa loquitur may not strictly apply in a criminal case – However it applies in civil case. (Para 126, 131)

       (1998) 4 SCC 39; (1979) 4 SCC 719; (2008) 5 SCC 730; 2009 (7) SCALE 407 – Referred

       (f) Contributory negligence – Alleged interference by appellant in treatment of his wife patient-deceased – Interference not an excuse for abdicating ones responsibility especially when it could also have been in the nature of suggestion – Such interference not borne out from records – Contributory negligence even if assumed is not pertinent – It may, however, have some role to play for the purpose of damages. (Para 135, 138, 144)

       (g) Code of Civil Procedure, 1908 – Order I Rule 9 and Rule 10 – Non-joinder of necessary party – No prejudice to impleaded parties – Non-joinder not a ground to dismiss the petition – Similarly, issuing notices to a large number of persons and withdrawing cases against some of them by itself – Not a relevant factor for dismissal of the appeals. (Para 146, 147, 150)

       2004 (8) SCALE 694 : (2004) 8 SCC 56 – Relied upon

       (h) Medical negligence – Negligence attributable on not availing available facilities –Medical negligence cannot be attributed for not rendering a facility which was not available – On the other hand failure of hospitals knowingly to provide some amenities that are fundamental for the patients, would amount to medical malpractice. (Para 149)

       2004 (8) SCALE 694 : (2004) 8 SCC 56 – Relied upon

       (i) Words and Phrases – Negligence – "Either subjectively a careless state of mind, or objectively careless conduct” – Strictly nonfeasance and not malfeasance. (Para 155, 156)

       (2003) 8 SCC 731; (1957) 2 All ER 118 – Relied upon

       (j) Medical negligence – Under section 304-A, IPC and under Consumer Protection Act – Attributes of care and negligence not similar under the two – An act which may constitute negligence or even rashness under torts may not amount to same u/s 304-A. (Para 152)

       (k) Medical negligence – Determination of liability – All attending and surrounding facts and circumstance have to be taken into account – An ordinary skilled professional standard of care should be followed – An error of judgment is not negligence per se – Patient should be informed of admitted risks of treatment – Not done instantly – Courts should apply stringent standard of disclosure in conjunction with a presumption of proximate cause – At the same time doctors are also entitled to a reasonable measure of autonomy. (Para 154, 158, 162, 164, 165)

       (2009) 3 SCC 1; (1997) 4 All ER 771 (HL); (2005) 6 SCC 1; [1985] All ER 643; 464 F.2d 772 (D.C. Cir. 1972); 8 Cal. 3d 229, 104 Cal. Rptr. 505, 502 P.2d 1 (1972); 37 Colo. App. 375, 549 P.2d 1099 (1976) – Relied upon

       (1985) 1 All ER 635 (HL); (1992) 109 Aus LR 625; 2001 HCA 18; (1980) 114 DLR 3d 1 – Referred

       (l) Legitimate expectation – Medical treatment – Deficiency in service – Best hospital in town and best doctors in their fields – Patient must legitimately expect premium service and care – AMRI representing to be one of the best in town – Not maintaining nurses register – Deficiency in services will be presumed. (Para 172, 173)

       2004 (8) SCALE 694 : (2004) 8 SCC 56 – Relied upon

       (m) Consumer Protection Act, 1986 – Section 22 – Medical negligence and deficiency in service – Individual doctors respondents 1 to 3 and 5 as also the hospital AMRI held guilty of medical negligence – Respondent no 6 Dr. Kaushik Nandy held not guilty as he has done whatever was possible to be done and his line of treatment meets with the treatment protocol of one of the experts. (Para 189, 190)

       (n) Consumer Protection Act, 1986 – Section 22 – Compensation – Compensation involving an accident – Law of torts – Principle of restitution in integrum – In case of death, loss to each dependent taking into account his position in each case may have to be considered separately – Matter remitted to National Commission for determining compensation based on laid down principles. (Para 194, 195, 199)

       (1942) AC 601; AIR 1962 SC 1; AIR 1995 SC 755 – Relied upon

       (1880) 5 AC 25; (2001) 8 SCC 197; 2009 (8) SCALE 451 – Referred

       (o) Indian Penal Code, 1860 – Section 304-A – Criminal negligence – To constitute criminal negligence it must be of a gross or very high degree – Acts of omission or commission should b established – Cause of death should be direct or proximate – Patient faces cumulative effect of negligence of doctors and the hospital – Negligence of individuals u/s 304-A objectively in cases like the present one extremely difficult – Although Dr. Mukherjee, Dr. Halder, Dr. Abani Roy Chowdhury, AMRI, Dr. B. Prasad were negligent, they cannot be held guilty u/s 304-A. (Para 204, 205, 213, 214)

       [1993] 4 All ER 935; [1990] 1 NZLR 399 – Relied upon

       Facts of the case:

       The patient (Anuradha) and her husband Dr. Kunal Saha were settled in the United States of America. Anuradha, was a child Psychologist by profession and Kunal, although a doctor by profession, has been engaged in research on H.I.V/ AIDS for the past 15 years.

       They left U.S.A. for a vacation to India on 24th March, 1998. They arrived in Calcutta on 1st April, 1998. While in Calcutta, Anuradha developed fever along with skin rash on 25th April, 1998. She remained under treatment of Dr. Sukumar Mukherjee, Respondent No. 1 from 26th April. Despite administration medicines prescribed by Respondent No. 1 Anuradha’s condition deteriorated rapidly and she was admitted at the Advanced Medicare Research Institute (AMRI) in the morning of 11th May, 1998 under Dr. Mukherjees 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.

       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.

       The Chief Judicial Magistrate, Alipore 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.

       Criminal appeal was filed against the order of the CJM as also a criminal revision was filed 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.

       The appeals preferred by Respondent Nos. 1 and 2 were allowed while the Criminal Revision Petitions filed by the complainant were dismissed. This order has been challenged by way of Criminal Appeal Nos. 1191-1194 of 2005.

       The Commission also dismissed O.P. No. 240 of 1999. Civil Appeal No.1727 of 2007 arises out of the said order.

       Finding of the Court:

       Although Dr. Mukherjee, Dr. Halder, Dr. Abani Roy Chowdhury, AMRI, Dr. B. Prasad were negligent, they cannot be held guilty u/s 304-A.

       Result:

       Criminal appeals dismissed.

       Civil appeal disposed of. Matter remitted to Commission for determination of compensation.