IMPORTANT POINT
If hospitals knowingly fail to provide some amenities that are fundamental for patients, it would certainly amount to medical malpractice.

Headnote:(A) Consumer Protection Act, 1986—Section 23—Medical negligence—Death of patient—Patients by and large are ignorant about disease or side or adverse affect of a medicine—Ordinarily, patients are to be informed about admitted risk—If some medicine has some adverse affect or some reaction is anticipated, he should be informed thereabout—It was not done in instant case—Precautions as also course of actions suggested by authors have not been undertaken by respondents—Even suspected offending drug was not withdrawn at later stages—Negligence is attributed when existing facilities are not availed of—Medical negligence cannot be attributed for not rendering a facility which was not available—If hospitals knowingly fail to provide some amenities that are fundamental for patients, it would certainly amount to medical malpractice—Long acting steroids are not advisable in any clinical condition—However, instead of prescribing to a quick acting steroid, prescription of a long acting steroid without foreseeing its implications is certainly an act of negligence—Negligent action has been noticed with respect to more than one respondent and cumulative incidence has led to death of patient—Matter remitted to National Commission for determining compensation.
       (B) Evidence Act, 1872—Section 45—Expert evidence—Court is not bound by evidence of experts which is to a large extent advisory in nature—Court must derive its own conclusion upon considering opinion of experts which may be adduced by both sides, cautiously, and upon taking into consideration authorities on the point on which he deposes—Medical science is a difficult one—Court for the purpose of arrivingat a decision on the basis of the opinions of experts must take into consideration difference between an ‘expert witness’ and an ‘ordinary witness’—Opinion must be based on a person having special skill or knowledge in medical science—It could be admitted or denied—Whether such an evidence could be admitted or how much weight should be given thereto, lies within domain of court—Evidence of an expert should be interpreted like any other evidence.
       (C) Indian Penal Code, 1860—Section 304-A—Medical negligence—Death of patient—Standard of proof as also culpability requirements under Section 304 –A of Indian Penal Code stands on an altogether different footing—On comparison of provisions of Penal Code with thresholds under Tort Law or Consumer Protection Act, foundational principle that 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.
       (D) Torts—Negligence—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 element of mens rea must be shown to exist—For an act to amount to criminal negligence, 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 basis for prosecution—To prosecute a medical professional for negligence under criminal law it must be shown that accused did something or failed to do something which in given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do.
       (E) Torts—Medical Negligence—Hospitals are institutions, people expect better and efficient service, if hospital fails to discharge their duties through their doctors, being employed on job basis or employed on contract basis, it is hospital which has to justify and not impleading a particular doctor will not absolve hospital of its responsibilities.

JUDGMENT

S.B. Sinha, J.

A. INTRODUCTION

A . 1. BACKGROUND FACTS:

The patient (Anuradha) and her husband Dr. Kunal Saha (for short, “Kunal”) were settled in the United States of America. Anuradha, a child Psychologist by profession, was a recent graduate from a prestigious Ivy League School (‘Columbia University’ in the New York State). Although a doctor by profession, Kunal has been engaged in research on H.I.V/ AIDS for the past 15 years. They left U.S.A. for a vacation to India on 24th March, 1998. They arrived in Calcutta on 1st April, 1998. While in Calcutta, Anuradha developed fever along with skin rash on 25th April, 1998. On 26th April, Dr. Sukumar Mukherjee, Respondent No. 1 herein attended and examined Anuradha at her parental residence on a professional call. Dr. Mukherjee assured the patient and her husband of a quick recovery and advised her to take rest but did not prescribe her any specific medicine. However, two weeks thereafter, i.e., on 7th May, 1998, the skin rash reappeared more aggressively. Dr. Mukherjee was again contacted and as per his instructions, Anuradha was taken to his chamber. After examining Anuradha, Dr. Mukherjee prescribed Depomedrol injection 80 mg twice daily for the next three days. Despite administration of the said injection twice daily, Anuradha’s condition deteriorated rapidly from bad to worse over the next few days. Accordingly, she was admitted at the Advanced Medicare Research Institute (AMRI) in the morning of 11th May, 1998 under Dr. Mukherjee’s supervision. Anuradha was also examined by Dr. Baidyanath Halder, Respondent No. 2 herein. Dr. Halder found that she had been suffering from Erithima plus blisters. Her condition, however, continued to deteriorate further. Dr. Abani Roy Chowdhury, Consultant, Respondent No. 3 was also consulted on 12th May, 1998. On or about 17th May, 1998, Anuradha was shifted to Breach Candy Hospital, Mumbai as her condition further deteriorated severely. She breathed her last on 28th May, 1998. Kunal sent a lawyer’s notice to 26 persons on 30th September, 1998. The first 19 addressees were those who had treated Anuradha at Kolkata while addressee numbers 20 to 26 were those who treated her in Mumbai. On or about 19th November, 1998 one of his relatives, Malay Kumar Ganguly filed a Criminal Complaint in the Court of Chief Judicial Magistrate, 24 Paraganas at Alipore against Dr. Sukumar Mukherjee, Dr. Baidyanath Halder and Dr. Abani Roy Chowdhury, respondent Nos. 1, 2 and 3 for commission of offence under Section 304-A of the Indian Penal Code. Thereafter Kunal filed O.P. Nos. 240 of 1999 against 19 persons who had rendered medical advice/treatment/facilities to Anuradha between 23rd April, 1998 and 17th May, 1998 at Kolkata before the National Consumer Disputes Redressal Commission, New Delhi (Commission). However, pursuant to the orders of the Commission names of some of the respondents were struck off. In the said petition the complainant claimed an amount of compensation of Rs. 77,76,73,500/- with interest for the alleged deficiency in the service rendered by Respondent Nos. 1, 2, 3, 5, 6 and AMRI hospital (Respondent No.4). On or about 17.7.1999, a complaint was filed by Kunal against Dr. Sukumar Mukherjee, Dr. Baidyanath Halder and Dr. Abani Roy Chowdhury before the West Bengal Medical Council (WBMC) making allegations similar to the one he had made in his complaint before the Commission. On or about 29th May, 2000 , OP No. 179 of 2000 was filed by Kunal against the doctors, including Dr. Udwadia of the Breach Candy Hospital at Mumbai and the hospital itself before the Commission. Before the learned Chief Judicial Magistrate, in the said criminal complaint a large number of witnesses were examined. A large number of documents were also marked as exhibits. The learned Chief Judicial Magistrate, Alipore by his judgment and order dated 29th May, 2002 found Respondent Nos. 1 and 2 guilty of commission of an offence under Section 304-A of the Indian Penal C

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SUPREME COURT OF INDIAS.B. Sinha & Deepak Verma, JJ.Malay Kumar Ganguly —AppellantversusDr. Sukumar Mukherjee and Others —RespondentsCriminal Appeal Nos. 1191-1194 of 2005 with Civil Appeal No. 1727 of 2007Decided on 7.8.2009

IMPORTANT POINTIf hospitals knowingly fail to provide some amenities that are fundamental for patients, it would certainly amount to medical malpractice.

Cases Referred (16)

SUPREME COURT OF INDIA
S.B. Sinha & Deepak Verma, JJ.
Malay Kumar Ganguly —Appellant
versus
Dr. Sukumar Mukherjee and Others —Respondents
Criminal Appeal Nos. 1191-1194 of 2005 with Civil Appeal No. 1727 of 2007
Decided on 7.8.2009

IMPORTANT POINT
If hospitals knowingly fail to provide some amenities that are fundamental for patients, it would certainly amount to medical malpractice.