Criminal Appeal Nos. 1191-1194 of 2005 with Civil Appeal No. 1727 of 2007. Case: Malay Kumar Ganguly and Kunal Saha Vs Sukumar Mukherjee and Ors.. Supreme Court (India)

Case NumberCriminal Appeal Nos. 1191-1194 of 2005 with Civil Appeal No. 1727 of 2007
CounselFor Appearing Parties: Kailash Vasev, Bhaskar P. Gupta, Sr. Advs., R. Venkatraman, Shashi Bhushan Kumar, K.M. Singh, Kunal Saha, Party-in-Person, Sanjay Kumar Ghosh, Aroop Banerjee, Ranjan Mukherjee, Rupali S. Ghosh, Shantanu Bhowmick, Satish Vig, K.L. Taneja, Avijit Bhattacharjee, Saumya Kundu, Subrata Biswas, Premashish Choudhary, Jaidip Kar,...
JudgesS.B. Sinha and Deepak Verma, JJ.
IssueEvidence Act - Section 45; Consumer Protection Act, 1986 - Sections 12, 13, 13(4), 14 and 22; Consumer Protection Rules; Indian Penal Code - Section 304A; Criminal Procedure Code (CrPC) - Section 313; Civil Procedure Code (CPC) - Order 1, Rules 9, 10 and 10(4) - Order 18, Rule 4; Constitution of India - Articles 21 and 136; Medical Negligence law
CitationAIR 2010 SC 1162 , JT 2009 (10) SC 256 , RLW 2009 (4) SC 3625 , 2009 (10) SCALE 675 , (2009) 9 SCC 221
Judgement DateAugust 07, 2009
CourtSupreme Court (India)

Judgment:

S.B. Sinha, J.

  1. Introduction

  2. 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 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-Kunal 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 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:

    Dr. Kunal 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.

    (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 evidence 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 and 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 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 according to him not more than 40 mg. Prednisolone daily for one day, to be reduced to 5 mg. within the next 5 to 6 days is the ideal dosage.

    (vii) When a patient is diagnosed to be suffering from TEN, supportive therapy is imperative in character but no such advice was rendered.

    (viii) On and after 12th May, 1998, Anuradha was not provided any supportive treatment which could be evident from the hospital records seized by the police.

    (ix) Although the police seized 71 pages of the record from AMRI, merely 22 pages are in relation to her stay during 11th May to 17th May, 1998, whereas the medical record of Breach Candy Hospital from 17th May to 27th May, 1998 cover around 370 pages.

    (x) At AMRI records of vital parameters like temperature, pulse, blood pressure; etc. were not maintained which itself is an act of gross negligence.

    (xi) Respondent Nos. 5 and 6, although were junior doctors, also followed the treatment guidelines set 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.

    (xii) The Expert doctors has categorically stated that mal-practice 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...

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