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2017 Supreme(Cal) 50
IN THE HIGH COURT AT CALCUTTA
Indrajit Chatterjee, J.
Dr. Krishnendu Das - Appellant
Versus
The State of West Bengal & Anr. - Respondents
C.R.R. 1603 of 2009 with C.R.R 3962 of 2009
Decided On : 10-01-2017
For the Petitioner: Mr. Tapandeb Nandi Mr. Soubhik Mitter
For the Accused : Mr. Brotindro Mullick, Mr. Dipankar Dandapath
For the Opposite Party : Mr. Deep Chaim Kabir, Mr. Mashar Hossain Chowdury
For the State : Mr. Ayan Basu
Headnote:
MEDICAL NEGLIGENCE - GROSS CRIMINAL NEGLIGENCE - DENGUE FEVER - BURDEN OF PROOF - STANDARD OF CARE - ROLE OF MEDICAL COUNCIL - CRIMINAL LIABILITY - SECTION 304A, INDIAN PENAL CODE, 1860.
Fact of the Case:
Anushila Bose, a 5-year-old girl, was admitted to Sterling Hospital, a private treatment center, on September 28, 2005, suffering from fever. She was declared dead on September 29, 2005, in the same hospital. The father of the victim lodged a complaint with the Shyampukur Police Station on November 13, 2005, alleging medical negligence by the doctors who treated his daughter. The police investigated the case and submitted a charge sheet against Dr. Krishnendu Das, Dr. Debashis Mukherjee, and Dr. Debashis Chatterjee under Section 304A of the Indian Penal Code (IPC). The accused doctors filed revision petitions in the Calcutta High Court challenging the trial court's order taking cognizance of the offense.
Finding of the Court:
The High Court observed that the standard of negligence required to be proved for fixing criminal liability on a doctor or surgeon should be so high as to be described as "gross negligence" or "recklessness." The court relied on the decisions of the Supreme Court in Jacob Mathew v. State of Punjab and Suresh Kumar Gupta v. NCT of Delhi & Anr. to hold that mere lack of taking necessary care, attention, and skill is not enough to establish criminal negligence. The court also noted that a doctor cannot be held criminally responsible for a patient's death unless his negligence or incompetence showed such disregard for the life and safety of his patient as to amount to a crime against the State.
Issues: 1. Whether the doctors were grossly negligent in treating the deceased, Anushila Bose? 2. Whether the standard of care required to be proved for fixing criminal liability on a doctor or surgeon is the same as that required for civil liability?
Ratio Decidendi: 1. The court held that the evidence on record did not establish that the accused doctors were grossly negligent in treating the deceased. The court noted that the doctors had attended to the deceased on several occasions and had prescribed appropriate treatment. The court also noted that the deceased was suffering from dengue fever, which is a potentially fatal disease, and that the doctors had taken all necessary steps to save her life. 2. The court held that the standard of care required to be proved for fixing criminal liability on a doctor or surgeon is higher than that required for civil liability. The court noted that in order to establish criminal negligence, the prosecution must prove that the doctor's conduct fell below the standard of care that a reasonably competent practitioner would have exercised in the same circumstances.
Final Decision: The High Court allowed the revision petitions filed by the accused doctors and quashed the proceedings against them.
Indrajit Chatterjee, J.
1. This Court is hearing two revisional applications, one filed by Dr. Krishnendu Das (in CRR No. 1603 of 2009) and the other filed by Dr. Debasish Mukherjee and Dr. Debasish Chatterjee jointly, registered as CRR No. 3962 of 2009 as both these criminal revisional applications arose out of Shyampukur P.S. Case No. 171 dated 31-11-2005 under Section 304A of the Indian Penal Code (hereinafter called as the said Code) which is now pending before the learned Metropolitan Magistrate, 15th Court, Kolkata, as G.R. Case No. 1387 of 2005. Both these CRRs are taken up together.
2. The fact relevant for the purpose of disposal of these criminal revisional applications can be stated in brief thus:
That the daughter of the de facto complainant was admitted at Sterling Hospital, a Private Treatment Centre at about 10-20 p.m. on 28-09-20105. She (Anushila Bose) aged 5 years was declared dead on 29-09-2005 in the said Private Treatment Centre. After her death, a complaint was lodged with Shyampukur Police Station by the father of the victim on 13-11-2005 and the said Police Case was started with an explanation that as he was mentally perturbed in the intervening days he could not lodge the complainant earlier.
3. In the complaint it was written that since the night of 25-09-2005, the said victim was suffering from fever and the de facto complainant attended one Malaria Clinic on the next date (26-09-2005) run by Kolkata Municipal Corporation for detection of Malaria of the said daughter of the de facto complainant. After examination of her blood the germs of Malaria could not be detected. The Platelet count of the said daughter was checked from one Laboratory called as Madipath where the Platelet count was 2.35 Lakh/Cu.m.m.
4. On the very date (26-09-2005) in the night at about 10-00 p.m. the de facto complainant took her daughter to Dr. Debasish Mukherjee, that is, accused No.1 and the petitioner of CRR No. 3962 of 2009 and the doctor examined the patient and also the blood examination report. Some medicines were prescribed as per prescription dated 26-09-2005.
5. The fever did not subside and as such, in the morning of 28-09-20105 (Wednesday) the said daughter was taken to Calcutta School of Tropical Medicine but the attending doctors there did not take any care of the daughter as her temperature only 100o F and not 103o F. The attending doctors there told the de facto complainant to take her daughter to bring School on Friday or Saturday for Dengue Test and Sukumar Das (A-3) also examined the blood report of the victim but he neglected as he did not prescribe any fresh blood test.
6. On the same day, i.e. on 28-09-2005 at about 8-45 p.m. when the said victim started vomiting, then the de facto complaint contacted Dr. Debasish Mukherjee (A-1) over telephone at about 9-10 p.m. and in the meantime, the victim was vomiting and withdrew the Syrup and thereafter, call was again made to the A-1 just after five minutes of the first call and A1 was requested to come to the residence of the de facto complainant to attend the said daughter but the doctor refused to come to attend the patient and also told to administer on her Domestal Syrup again. It was also disclosed by the de facto complainant to the said doctor that the victim was not urinating since 3 p.m. A-1 told the de facto complainant to come to his residence and chamber at 7-00 a.m. on the next day. Even though Demestal Syrup was administered, vomiting did not stop. The telephone of the A-1 was found “switched off”.
7. Then the de facto complainant contacted Dr. Debasish Chatterjee (A4) and he advised the de facto complainant to consult with Dr. Krishnendu Das, i.e. A-5, one pediatrician and ultimately, the said girl was taken to Starling Hospital located at 55/1, Bhupen Bose Avenue at about 10-00 p.m. on 28-09-2005. Both Dr. Chatterjee and Mukherjee (A-4 and A-5) respectively attended that daughter. There was examination of blood afresh as per the treatment schedu
