# • [2009] 13 (ADDL.) S.C.R. 1 MALAY KUMAR GANGULY v. DR. SUKUMAR MUKHERJEE AND OTHERS

- **Citation:** [2009] 13 S.C.R. 1
- **Court:** Supreme Court of India
- **Decided:** 2009-08-07
- **Case number:** Criminal Appeal Nos. 1191-1194 of 2005
- **Bench:** S.B. Sinha, Deepak Verma
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/2009-13-addl-s-c-r-1-malay-kumar-ganguly-v-dr-sukumar-mukherjee-and-others-25151
- **Pages:** 123

## Headnote

CONSUMER PROTECTION ACT, 1986/PENAL CODE,
1860:
Sections 12, 131304-A - Medical negligence - Criminal
negligence - Patient treated by various doctors/Hospitals -
Death - Allegation of negligence - Negligence must be of a
gross or a very high degree to amount to criminal negligence
A
B
c
- To prosecute a medical professional for negligence under 0
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 -
The
complexities involved in the case as also differing nature of E
negligence exercised by various hospitals and doctors make -
it difficult to distil individual extent of negligence with respect
to each of them - As such medical negligence under Section
304A cannot be objectively determined - An act which may
constitute negligence or even rashness under torts may not
amount to same under Section 304-A /PC - If a representation F
is made by a doctor that he is a specialist and ultimately it
turns out that he is not, deficiency in service would be
presumed.
Provisions of Evidence Act not applicable to Consumer G
Commission - Commission to merely comply with principles
of natural justice and the procedure laid down under Sections
12, 13 and the Rules made under tne Act - Certain doctors
held negligent - Due to their negligent action, patient died as
1
H
2
SUPREME COURT REPORTS [2009] 13 (ADOL.) S.C.R.
A a result of cumulative incidence - But doctrine of cumulative
~
effect not available under criminal law - However, contributory
negligence cannot be attributed - Theory of informed consent
- Discussed - In the Civil Appeal, matter remitted to National
Consumer Commission for determining compensation
B preferably within six months - Constitution of India, Articles
21, 136.
COSTS - Imposition of- In view of the stand and conduct
of certain parties, higher cost directed to be paid.
c
LEGAL DOCTRINES/PRINCIPLES:
Principle of res ispa loquitur - Not strictly applicable in
a criminal case.
D
Doctrine of legitimate expectation - Applicability of -
Administrative Law.
Doctrine of Cumulative effect - No available in criminal
, 1 law.
E
The Criminal Appeals were preferred against the
order of the High Court and the Civil Appeal arose
against the judgment and order of the National Consumer
Commission. The matters relate to alleged criminal
~
negligence/medical negligence. The patient, .settled ·in
F USA, came to India and suffered some health problem
and was treated in Calcutta and later in Bombay.
The High Court dismissed the Criminal Revision
Petitions filed by the complainants and allowed the
appeals filed by the Respondent-Doctors, thus setting
G aside their conviction and sentence.
Dismissing the Criminal Appeals and remitting the
-1.
, matter in the Civil Appeal to the National Consumer
'
Commission, the Court
H
..•
MALAY KUMAR GANGULY v. DR SUKUMAR
3
. MUKHERJEE AND ORS.
HELD: 1. The court for the purpose of arriving at a A
decision on the basis of the opinions of experts must take
into consideration the difference between an 'expert
witness' and an 'ordinary witness'. The opinion must be
based on a person having special skill or knowledge in
medical science. It could be admitted or denied. Whether s
such an evidence could be admitted or how much weight
should be given thereto, lies within the domain of the
court. The evidence of an expert should, however, be
interpreted like any other evidence. [Para 1 OJ (58-E-F]
State of H.P. v. Jai Lal and others, (1999) 7 sec 280,
C
relied on.
2.1. It is true that ordinarily if a party to an action does
not object to a document being taken on record and the
Y
same is marked as an exhibit, he is estopped and D
precluded from questioning the admissibility thereof at a
later stage. It is, however, trite that a document becomes
inadmissible in evidence unless author thereof is
examined; the contents thereof cannot be held to have
been

## Text

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•
[2009] 13 (ADDL.) S.C.R. 1
MALAY KUMAR GANGULY
v.
DR. SUKUMAR MUKHERJEE AND OTHERS
(Criminal Appeal Nos. 1191-1194 of 2005)
AUGUST 7, 2009
[S.B. SINHA AND DEEPAK VERMA, JJ.]
CONSUMER PROTECTION ACT, 1986/PENAL CODE,
1860:
Sections 12, 131304-A - Medical negligence - Criminal
negligence - Patient treated by various doctors/Hospitals -
Death - Allegation of negligence - Negligence must be of a
gross or a very high degree to amount to criminal negligence
A
B
c
- To prosecute a medical professional for negligence under 0
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 -
The
complexities involved in the case as also differing nature of E
negligence exercised by various hospitals and doctors make -
it difficult to distil individual extent of negligence with respect
to each of them - As such medical negligence under Section
304A cannot be objectively determined - An act which may
constitute negligence or even rashness under torts may not
amount to same under Section 304-A /PC - If a representation F
is made by a doctor that he is a specialist and ultimately it
turns out that he is not, deficiency in service would be
presumed.
Provisions of Evidence Act not applicable to Consumer G
Commission - Commission to merely comply with principles
of natural justice and the procedure laid down under Sections
12, 13 and the Rules made under tne Act - Certain doctors
held negligent - Due to their negligent action, patient died as
1
H
2
SUPREME COURT REPORTS [2009] 13 (ADOL.) S.C.R.
A a result of cumulative incidence - But doctrine of cumulative
~
effect not available under criminal law - However, contributory
negligence cannot be attributed - Theory of informed consent
- Discussed - In the Civil Appeal, matter remitted to National
Consumer Commission for determining compensation
B preferably within six months - Constitution of India, Articles
21, 136.
COSTS - Imposition of- In view of the stand and conduct
of certain parties, higher cost directed to be paid.
c
LEGAL DOCTRINES/PRINCIPLES:
Principle of res ispa loquitur - Not strictly applicable in
a criminal case.
D
Doctrine of legitimate expectation - Applicability of -
Administrative Law.
Doctrine of Cumulative effect - No available in criminal
, 1 law.
E
The Criminal Appeals were preferred against the
order of the High Court and the Civil Appeal arose
against the judgment and order of the National Consumer
Commission. The matters relate to alleged criminal
~
negligence/medical negligence. The patient, .settled ·in
F USA, came to India and suffered some health problem
and was treated in Calcutta and later in Bombay.
The High Court dismissed the Criminal Revision
Petitions filed by the complainants and allowed the
appeals filed by the Respondent-Doctors, thus setting
G aside their conviction and sentence.
Dismissing the Criminal Appeals and remitting the
-1.
, matter in the Civil Appeal to the National Consumer
'
Commission, the Court
H
..•
MALAY KUMAR GANGULY v. DR SUKUMAR
3
. MUKHERJEE AND ORS.
HELD: 1. The court for the purpose of arriving at a A
decision on the basis of the opinions of experts must take
into consideration the difference between an 'expert
witness' and an 'ordinary witness'. The opinion must be
based on a person having special skill or knowledge in
medical science. It could be admitted or denied. Whether s
such an evidence could be admitted or how much weight
should be given thereto, lies within the domain of the
court. The evidence of an expert should, however, be
interpreted like any other evidence. [Para 1 OJ (58-E-F]
State of H.P. v. Jai Lal and others, (1999) 7 sec 280,
C
relied on.
2.1. It is true that ordinarily if a party to an action does
not object to a document being taken on record and the
Y
same is marked as an exhibit, he is estopped and D
precluded from questioning the admissibility thereof at a
later stage. It is, however, trite that a document becomes
inadmissible in evidence unless author thereof is
examined; the contents thereof cannot be held to have
been proved unless he is examined and subjected to E
cross-examination in a court of law. [Para 12] (60-0-E]
2.2. The document which is otherwise inadmissible
cannot be taken in evidence only because no objection
to the admissibility thereof was taken. In a criminal case,
subject of course, to the shifting of burden depending
upon the statutes and/or the decisions of the superiors
courts; the right of an accused is protected in terms of
Article 21 of the Constitution of India. The procedure laid
in that behalf, therefore, must be strictly complied with.
F
In the instant case, Exhibits 4, 5 and 6 are not admissible G
in evidence in the criminal trial. The said exhibits,
however, are admissible before the consumer court.
:[Paras 12 and 13] [60-F-H; 61-A]
H
4
SUPREME COURT REPORTS [2009] 13 (ADDL.) S.C.R.
A
2.3. Apart from the procedures laid down in Section
12 and 13 as also the Rules made under the Act, the
Commission is not bound by any other prescribed
procedure. The provisions of the Indian Evidence Act are
not applicable. The Commission is merely to. comply with
s the principles of natural justice, s'ave and except the ones
laid down under sub-section (4) of Section 13 of the 1986
Act. The proceedings before the National Commission
are although judicial proceedings, but at the same time
it is not a civil court within the meaning of the provisions
c of the Code of Civil Procedure. It may have all the
trappings of the Civil Court but yet it can not be called a
civil court. [Para 13] [62-G-H; 63-A-B]
2.4. The opinions of the experts as contained in the
Exhibits P4, PS and PG are probably based on the
D 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
E correctness thereof either before the court or before the
Commission. They did not examine any expert to show
that said opinions are not correct. The concerned
respondents in their depositions before the Commission
also did not challenge the correctness or otherwise of the
·'f said opinions. Even otherwise the deficiencies pointed
out therein are explicit from the records. [Para 13] (63-0E]
R. V. E.
Venkatachala
Gounder
v.
Arulmigu
G Viswesaraswami & V.P. Temple, (2003) 8 SCC 752; Bharat
Bank Ltd. v. Employees of the Bharat Bank Ltd. 1950 SCR
459; Nahar Industries Ltd. v. Hong Kong & Shanghai Banking
Corporation etc. (2009) 12 SCR 54 and J.J. Merchant (Dr)
v. Shrinath Chaturvedi, (2002) 6 SCC 635, relied on.
H
~
I
<
>--
MALAY KUMAR GANGULY v. DR. SUKUMAR
5
MUKHERJEE AND ORS.
3.1. Toxic Epidermal Nnecrolysis (TEN) is also known
A
.+
as Lyell's Syndrome, epidermolysis acuta toxica and
scalded skin syndrome. TEN begins with a non- specific
prodome of 1- 14 days in atleast half of the patients. It is
a severe and extensive variant of erythematobullous drug
eruption. In TEN, the patient is ill with high fever B
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. [Para 14] [64-G-H; 65-A]
3.2. Anuradha, it is conceded, was suffering from c
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
y
world. [Para 14] [65-C-D]
D
3.3. This Court would, in view of the difference of
opinion amongst experts, proceed on the assumption
that steroid can be administered in the TEN patients. All
of them are one in stating that their opinion is subject to E
the instructions given in the package insert of the
medicine. The necessity of following the instructions
given in the packet insert cannot be underestimated.
+
Admittedly, the instructions in the said packet insert had
not been followed in the instant case. [Para 14] [74-D; 75F
8-C; 77-8]
3.4. There is a near unanimity that the doses of
glucocorticosteroid and in particular Depomedrol were
excessive. From the prescription of Dr. Mukherjee, it is
evident that he not only prescribed Depomedrol injection G
twice daily, but had also prescribed Wysolone which is
also a steroid having the composition of Methyl
Predinosolone. From the Advanced Medicare Research
Institute (AMRI) records, it would appear that while
admitting the patient, it had categorically been noticed that
H
6
SUPREME COURT REPORTS [2009] 13 (ADDL.) S.C.R
A both Depomedrol injection twice daily and Wysolone
were being administered from 7th May, 1998 following
-.)...
the prescription of Dr. Mukherjee. It also now stands
admitted that Dr. Prasad also prescribed the same
medicine. From Dr. Mukherjee's prescription dated
B 11.05.1998, it is furthermore evident that he had
prescribed Wysolone 50 mg once daily for one week, 40
mg daily for next week and 30 mg daily for the third
week. He had also prescribed Depomedrol injec~tion 80
-.tmg twice daily for two days. "Depomedrol", is a "long
c acting" steroid recommended for the treatment of
"chronic" clinical conditions like "asthma" or "arthritis"
for its prolonged immnumosupressive action. The
maximum recommended dose of Depomedrol is 40-120
mg at 1-4 week intervals as clearly mentioned by the
0
drug manufacturer, Pharmacia. [Para 15] [77-C".'G]
'f
3.5. No symptomatic therapy was administered. No
emergency care was provided. Dr. Halder himself
accepted that the same was necessary. AMRI records
demonstrate how abysmal the nursing care was. This
E Court understand that there was no burn unit in AMRI
and there was no burn uriit at Breach Candy Hospital
either. A patient of TEN is kept in ICU. All emphasis has
been laid on the fact that one room was virtual!~ made
an ICU. Entry Restrictions were strictly adh"e~ d to.
F
Hyg.iene was ensured. But constant nursing and
supervision was required. In the name of preventing
infection, it cannot be accepted that the nurses would not
keep a watch on the patient. They would also not come
to see the patients or administer drugs. No nasogastric
G tube was given although the condition of mouth was
such that she could not have been given any solid food.
She required 7 to 8 litres of water daily. It was impossible
--'.
to give so much water by mouth. The doctors on the very
\
first day found that condition of mouth was bad. The ENT
'
H
+
y
MALAY KUMAR GANGULY v. DR. SUKUMAR
7
MUKHERJEE AND ORS.
specialist in his prescription noticed blisters around the
A
lips of the patient which led to difficulty 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). s·
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. Supportive therapy or
symptomatic therapy, admittedly, was not administered
as needle prick was prohibited. AMRI ev~n did not C
maintain its records properly. The nurses reports clearly
show that from 13th May onwards even the routine checkups were not done. [Para 16] [79-8-H; 80-A-C]
"Dermatology in General Medicine ( Fitz Patrick's)" (5th
Ed), and Comprehensive Dermatological Drug Therapy,
D
referred to.
4:1. Nosocomial infections are infections which are
a result of treatment in a hospital or a healthcare service
unit, but secondary to the patient's original condition.
Infections are considered nosocomial if they first appear
48 hours or more after hospital admission or within 30
days after discharge. Thus it becomes the liability of the
hospital to prevent such infection specially in the cases
where the patient has high risk of infection due to the
nature of disease suffered. AMRI as also the other
respondents say that the room was made infection free.
Certain restrictions on the visitors had also been taken.
E
F
It is, however, not disputed that the dressing of body
surface by Dr. Kaushik Nandy started only on 13th May,
G
1998. What type of dressing was to be done is a matter
of dispute. This Court may not go into the said question,
but must notice that in Breach Candy Hospital, the
dressing was done in operation theatre, firstly, on 18th
May, 1998 and then on all subsequent days. No dressing
H
8
SUPREME COURT REPORTS [2009] 13 (ADDL.) S.C.R.
A was done at AMRI in operation theatre. It is now alm.ost
accepted worldwide that the hospital is liable to prevent
such infections specially in the case where the patient
has high risk thereof due to the nature of the disease
suffered. It also almost stands established that use of
B Depomedrol and other high dose of glucocorticosteroid
may first lead to immunosuppression which may in turn
lead to septisis. [Para 18] [85-0-H; 86-A-B]
4.2. In April, 1998, when she started suffering, she
+
c
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.
D Such a green tinge would not occur within a day. Thus,
-yinfection 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
E to control such bacterial infection, the antibiotics were
administered. [Para 18] [86-C-D]
4.3. Those who support use and administration of
steroid do so with note of caution. They in no uncertain
-f
F terms state that the same should be used at a preliminary
stage. Respondents do not spell out as to what would be
the preliminary stage. The preliminary stage must have
started with the onset ·of the disease. She had been
suffering from skin rash from 3rd week of April, 1998. It
G increased with the passage of time. The cause of such
eruption was not ascertained. In fact what caused the
onset of disease was not known. It may be from Chinese
....(
food or it may even be from use of vitamin. On and from
7th May, 1998, she was prescribed injection Depomedrol
H
-+-
MALAY KUMAR GANGULY v. DR. SUKUMAR
9
MUKHERJEE AND ORS.
twice a day and Wysolone. It was continued upto 13th
A
May, 1998, nobody even thought of stopping the
injection. Dr. Halder although stopped Depomedro!
injection from 13th May, 1998, but prescribed a high dose
of steroid. No doctor posed unto themselves a basic
question why despite use of steroid, condition of the
B
patient was going from bad to worse. It is agreed across
the board and at least during trial, that supportive
treatment should have been given. The medicine was
propagated which did not exist. The medical literatures
were not consulted. Even for pulse therapy Depomedrol
C
could not have been used and only Solumedrol could
have been used. Kunal in his evidence explained the
difference l:letween the two. Dr. Mukherjee in his
deposition indirectly accepted the same. Each of those
pro-steroid group spoke of a single injection. Nobody D
suggested on the face of the voluminous medical
literature and authoritative opinions of the experts that
two injections daily could be prescribed by any prudent
physician. A great deal of confusion was sought to be
created between one kind of steroid and another. Vague
questions were asked from the experts to show that E
steroids may be used but Dr. Pasricha stated that only a
quick acting steroid should be used. Depomedrol is not
a quick acting steroid~ (Para 19] (86-G-H; 87-A-G]
5.1. The High Court as also the Commission
F
principally proceeded on the premise that the
respondents are not liable either for any act of criminal
misconduct or negligence because of cleavage of
opinion. The cleavage of opinion, if any, is between prosteroid group and anti-steroid group. This Court has G
proceeded to determine the question of negligence on
the part of the respondents 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
H
10
SUPREME COURT REPORTS [2009] 13 (ADDL.) S.C.R.
A down by them. The opinion of the anti-steroid group
appears to be more scientific and structured but the same
by itself, would not lead to the conclusion that the
respondents are guilty of gross negligence. [Para 19] [88C-F]
B
5.2. Assuming that the mortality rate is very high in
TEN patients, this Court feels that the doctors should
have been more careful. They should have treated the
·+
patient upon exercise of more care and caution. For the
c
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. This Court is,
therefore, of the opinion that the universally accepted
-y·
D medicated treatment protocol had also not been followed.
There may well be a difference of opinion on the course
o.f action to be adopted while treating a patient of TEN,
but the treatment line followed by Dr. Mukherjee which
entailed administration of 80 mg of Depomedrol injection
E twice is not supported by any school of thought. The
treatment line, in this case, does not flow from any
considered affinity to a particular school of thought, but
out of sheer ignorance of basic hazards relating to use
-f·
of steroids as also lack of judgment. [Para 19] [90-E-H; 91F A]
Mr. Fitz Patrick : Dermatology in General Medicine (5th
Edition), ref~rred to.
6. Kunal had not only obtained opinion of a large
G number of ~xperts, he examined some of them including
\:r
Dr. Anil Shirlde P.W. 9,; Dr. Udwadia (P.W.10) and, Dr. Salil
~
Kumar Bhattacharyya, P.W. 11. Respondents did not
examine any expert. They, however, relied upon some
authorities referred to earlier. The onus of proof, therefore,
H on a situation of this nature shifted to the respondents.
/
+
+
MALAY KUMAR GANGULY v. DR. SUKUMAR
11
MUKHERJEE AND ORS.
This Court is not oblivious of the fact that the principle
A
of res ipsa /oquitur may not be strictly applicable in a
criminal case, although certain authorities suggest
application of the said principle. [Para 20] [91-8-0]
Spring Meadows Hospital v. Harjo/ Ahluwalia, (1998) 4
8
SCC 39; Rattan Singh v. State of Punjab, (1979) 4 SCC 719;
B. Nagabhushanam v. State of Karnataka, (2008) 5 SCC 730
and Nizam Institute of Medical Sciences v. Prasanth S.
Dhananka and others, 2009 (7) SCALE 407, referred to.
7.1. The High Court as also the Commission opined
C
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 Kuanl Saha that the patient was transferred
to Bombay. It has been submitted that it was the infection
D
which developed during transportation which ultimately
proved fatal. 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
E
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. Nursing Superintendent
being a professional cannot take this plea. Moreover, the
F
same is not borne out of records at AMRI. Even if this
statement is assumed to be true, in a professional setting
of this nature, these interferences should have been
resisted by them. Interference cannot be taken to be an
excuse for abdicating one's responsibility especially G
when an interference could also have been in the nature
,...
of suggestion. [Para 21] [94-C-H; 95-A-B]
7 .2. Same comments were said to have been made
by Dr. Halder while making his statement under Section
H
12
SUPREME COURT REPORTS [2009] 13 (ADDL.) S. C.R.
A 313 of the Code of Criminal Procedure. They are
+
admissible in evidence for the said purpose. Similarly the
statements· made by Dr. Mukherjee and Dr. Halder in their
written statements before the National Commission are
not backed by any evidence on record. Even otherwise,
B keeping in view the specific defence raised by them
individually, interference by Kunal, so far as they are
concerned, would amount to hearsay evidence and not
direct evidence. [Para 21] [95-B-D]
-+-
c
7.3. Dr. K. Nandy in his evidence stated that he was
not allowed to change the dressings on 15th May and
16th May, 1998. However, according to him, he forced his
decision to do the dressing on 17th May, 1998 before she
was taken away from the hospital. [Para 21] [95-D-F]
D
7.4. However, it appears from the AMRI records that
the name of Kunal only appears once i.e. when he got
Anuradha admitted in the hospital. His name is not borne
out from any other record. So far as the statement of Dr.
Nandy is concerned, Kunal's explanation is that he did
E not follow the medical protocol in the matter of dressing.
This may or may not be correct. It is noticed that
whenever any interference in contrast to the AMRI was
attempted to be made by the patient party at Breach
Candy Hospital, it had scrupulously been placed on
-t·
F record. Wherever "Dr. Saha" appears in the record, it is
evident that the same refers to the elder brother of Kunal,
who is a surgeon. However, when there is any discussion
with both the brothers, like in the case of Dr. Udwadia, it
had been recorded 'both of them'. It is accepted that the
G elder brother of Kunal came to Mumbai on 17th May, 1998
itself. He brought with him a new antibiotic named
"Quinolone" which was not available in India. He
persuaded Dr. Uawadia to administer the said injection.
This discussion between them has also been recorded.
H
Spme adverse remarks have also been recorded with
MALAY KUMAR GANGULY v. DR. SUKUMAR
13
MUKHERJEE AND ORS.
('
+
regard to the conduct of Dr. Saha. Dr. Udwadia has
A
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. Though
some of the suggestions of Dr. Saha did not seem
particularly useful to Dr. Udwadia, but those measures
B
which were not harmful to the patient were administered.
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. Despite such
elaborate and careful treatment meted out to Anuradha, c
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. [Para 21) (95-F-H; 96y
A-E]
D
-
7.5. 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. Kuna!, however, submitted that the said
E
antibiotics were prescribed by the doctors at AMRI and
he did not write any prescription. It is, however, assumed
~
that the said antibiotics had been administered by Kunal
on his own, but it now stands admitted that administration
of such antibiotics was necessary. It will be pertinent to
F
note that even if one agrees that there was interference
by Kuna! Saha during the treatment, it in no way
diminishes the primary responsibility and default in duty
on the part of the defendants. lnspite of a possibility of
him playing an over-anxious role during the medical
G
,__
proceedings, the breach of duty to take basic standard
of medical care on the part of defendants is not diluted.
-
To that extent, contributory negligence is not pertinent.
It may, however, have some role to play for the purpose
of damages. [Para 21) [96-F-H; 97-A-B]
H
...
14
SUPREME COURT REPORTS [2009] 13 (ADDL.) S.C.R.
A
7.6. Proceedin~ 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. It has not been pointed out as to what
B difference would have been made if otb_ers 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
c pages. No party· had relied on any evidence other tha"!
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
D Anuradha. [Para 22] (98-A-D]
y
...
7.7. Kunal issued notices to a large number of
persons but withdrew the cases against most of them. In
the first notice there were a$ many as 26 addresses and
in the complaint filed before the National Commission,
•
E there were 19 addresses. Withdrawal of cases agaimst
some of them, is not of much significance. The Directors
of AMRI were impleaded as parties. Cases against them
had also been withdrawn and, most of them were liable
-jin their personal capacity. Dr. Kunal says thatr the
F proceeding against Breach Candy Hospital and doctors
treating Anuradha had been withdrawn as the principal
grievance against the hospital was that they did not have
any burn ward although he was already informed
thereabout. Burn ward was also not there in AMRI. In fact,
G it was brought on record that no nursing home in
Calcutta has a separate burn ward. Absence of burn ward
-4-
.by i~elf, thus, might not be a contributory factor although
existence thereof was highly desirable keeping in view
'-::-
the treatment protocol. [Para 22] (98-E-H; 99-A]
H
'\
+
+
-
MALAY KUMAR GANGULY v. DR. SUKUMAR
15
MUKHERJEE AND ORS.
7.8. Medical negligence cannot be attributed for not A
rendering a facility which was not available. If hospitals
knowingly fail to provide some amenities that a{e
fundamental for the patients, it would certainly amount to
medical malpractice. A hospital not having basic facilities
like oxygen cylinders would not be excusable. [Para 22]
B
[99-B-C]
8.1. It is noteworthy that standard of proof as also
culpability requirements under Section 304 -A of Indian
Penal Code stands on an altogether different footing. On
comparison of the provisions of Penal Code with the
C
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
D
rashness under torts may not amount to same under
section 304 A, IPC. [Para 23) [99-G-H; 100-A-B]
8.2. Negligence is strictly nonfeasance and not
malfeasance. It is the omission to do what the law
E
requires, or the failure to do anything in a manner
prescribed by law. It is the act which can be treated as
negligence without any proof as to the surrounding
circumstances, because it is in violation of statute or
ordinance or is contrary to the dictates of ordinary
F
prudence. (Para 23] (100-F-G]
8.3. The patients by and large are ignorant about the
disease or side or adverse affect of a medicine. Ordinarily
the patients are to be informed about the admitted risk, if
any. If some medicine has some adverse effect or some
G
reaction is anticipated, he should be informed
thereabout.· it was not done in the instant ~ase. [Para 24)
(103-D]
8.4. The law on medical negligence also has to keep
H
16
SUPREME COURT REPORTS [2009] 13 (ADDL.) S.C.R.
A 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
B duty to disclose to patients about the risks of serious side
effects or about alternative treatments. In the times to
come, litigation may be b~sed on the theory of lack of
informed consent. A significant number of jurisdictions,
however, determine the existence and scope of the
C 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. In this
respect, the only reasonable guarantee of a patient's right
of bodily integrity and self-determination is for courts to
0 apply a stringent standard of disclosure in conjunction
with a presumption of proximate cause. At the same time,
a reasonable measure of autonomy for the doctor is also
pertinent to be safeguarded from unnecessary
interference. [Para· 24] [104-C-F]
E
8.5. So far as transportation of Anuradha from
Kolkata to Mumbai is concerned, there is a Certificate
given by Dr. Baidyanath Halder correctness whereof,
except for the words "for better treatment" is not in
di~pute. Dr. Halder does not contend that the contents
F of the same are wrong. He merely says that the same
was issued atthe instance of the patient. The submission
of Dr. Halder that he had issued the certificate without
seeing the patient cannot be believed. If that be so, such
a certificate could have been issued by Dr. Bairam Prasad
G and/or any other doctor.. Why he had taken the burden
of issuing such a certificate is not explained. This Court
is of the opinion that a conclusion as to whether the
words "for better treatment" have been inserted in the
~aid certificate or not or the same was done at the
H instance of Kunal, is wholly unnecessary. The only
+
-+
+
..
-
MALAY KUMAR GANGULY v. DR. SUKUMAR
17
MUKHERJEE AND ORS.
question which arises is as to whether there was any risk
A
of Anuradha developing infection due to exposure during
transpo~c;ttion. She was flown to Mumbai b~· an exclusive
chartered flight (air ambulance) of East-West Rescue of
Delhi. Respondents did not suggest that the service
provided by the said airlines was of inferior character or
B
sufficient precautions were not taken during
transportation. In fact, the condition of Anuradha was so
critical that there was no other option but to take her to
a better hospital. Her transportation to Mumbai was
necessary and was not an act borne out of desperation c
alone. It appears that East West Rescue of Delhi, which
provided air ambulance, must have taken all necessary
precautions. [Para 25) [104-G-H; 105-A-G]
8.6. Dr. Udwadia made a comment that transportation
of Anuradha from Kalka.ta to Mumbai may have exposed
D
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
E
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
F
same, observed that the patient's condition was worse
than he anticipated. [Para 25) (105-G-H; 106-A-B]
Municipal Corpn. Of Greater Bombay v. Laxman Iyer,
(2003) 8 sec 731, relied on.
Martin F.D' Souza v. Mohd. lshfaq, (2009) 3 SCC 1 ar;id
Jacob Mathew V. State of Punjab, (2005) 6 sec 1, referred
to.
G
H
18
SUPREME COURT REPORTS [2009] 13 (ADDL.) S.C.R.
A
Bo/am v. Friern Hospital Management Committee,
(1957) 2 All ER 118; Maynard v. West Midland Regional
+
Health, Authority, (1985) 1 All ER 635 (HL); Rogers v.
Whitaker: (1992) 109 Aus LR 625; Roenbreg v. Percival 2001
HCA 18; Rib/ v. Hughes: (1980) 114 DLR 3d 1; Bolitho v.
B
City and Hackney Health Authority, (1997) 4 All ER 771 (HL);
Sidaway v. Board of Governors of Beth/em Royal Hospital
and the Maudsley Hospital, [1985] All ER 643; Canterbury
v. Spence, 464 F.2d 772 (D.C. Cir. 1972), cert. denied, 409
-+
U.S. 1064 (1972); Cobbs v. Grant, 8 Cal. 3d 229, 104 Cal.
c Rptr. 505, 502 P.2d 1 (1972) and Hamiltorn v. Hardy, 37
Colo. App. 375, 549 P.2d 1099 (1976), referred to.
Law of Torts, Ratanlal & Dhirajlal Twenty-fourth Edition
2002, at p.441-442 and Adavanced Law Lexicon, P
D
Ramanatha Aiyar, 3rd ed. 2005, p. 3161, referred to.
..,...
9.1. 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
E hospital. It was not too much for a patient to expect the
best treatment from the doctors of the stature of Dr.
Mukherjee, Dr. Halder and Dr. Abani Roy Chowdhury.
Services of other expertS in fields were requisitioned by
the Hospital. References were made and the Hospital on
--+-
F the basis of the recommendations made by the doctors
themselves consulted the best doctors in their respective
fields. Kunal or Anuradha or his relatives never interfered
therewith. They did not call any doctor of their choice to
the Hospital. In fact, after Dr. A.K. Ghoshal came to know
G that Anuradha was suffering from TEN, he suggested a
line of treatment which was not adhered to keeping in
view the fact that Dr. Halder and hospital authorities were
-'(
in charge of the· case. [Para 26] (106-D-F]
9.2. The standard of duty to care in medical services
H
--
MALAY KUMAR GANGULY v. DR. SUKUMAR
19
MUKHERJEE AND ORS.
may also be inferred after factoring in the position and
A
stature of the doctors concerned as also the hospital; the
premium stature of services avail~ble t0 the patient
certainly raises a legitimate expectation. This Court is not
oblivious that the source of the said doctrine is in
administrative law. A little expansion of the said doctrine
B
having regard to an implied nature of service which is to
be rendered, would not be quite out of place. [Para 26]
[106-G-H; 107-A]
9.3. AMRI makes a representation that it is one of the
C
best hospitals in Calcutta and provides very good
medical care to its patients. In fact it was urged that it is
not expected that in AMRI regular daily medical check-up
would not have been conducted, but the records suggest
otherwise. The deficiency in service emanates therefrom.
-.-
Even in the matter of determining the deficiency in
D
~
medical service, it is now well-settled that if
representation is made by a doctor that he is a specialist
and ultimately it turns out that he is not, deficiency in
medical services would be presumed. [Para 26] [107-8C]
E
Smt. Savita Garg v. The Director, National Heart Institute
2004 (8) SCALE 694 : (2004) 8 SCC 56, referred to.
10.1. When Dr. Mukherjee examined Anuradha, she
had rashes all over her body and this being the case of
F
dermatology, he should have referred her to a
dermatologist. Instead, he prescribed "Depomedrol" for
the next 3 days on his assumption that it was a case of
"vasculitis". The dosage of 120 mg Depomedrol per day
is certainly a higher dose in case of a TEN Patient or for G
that matter any patient suffering from any other bypass
of skin disease and the maximum recommended usage
by the drug manufacturer has also been exceeded by Dr.
Mukherjee. On 11th May, 1998, the further prescription of
Depomedrol without diagnosing the nature of the disease
H
20
SUPREME COURT REPORTS [2009] 13 (ADDL.) S.C.R.
"
A is a wrongful act on his part. According to general
+
practice, long acting steroids are not advisable in any
clinical condition. However, instead of prescribing to a
quick acting steroid, the prescription of a long acting
B
steroid without foreseeing its implications is certainly an
act of negligence on his part without exercising any care
or caution. As it has been already stated by the Experts
who were cross examined and the authorities that have
been submitted that the usage of 80-120 mg is not
-tpermissible in TEN. [Para 27] [108-G-H; 109-A-C]
c
10.2. Furthermore, after prescribing a steroid, the
effect of immunosuppression caused due to it, ought to
have been foreseen. The effect of immunosuppression
caused due to the use of steroids has affected the
D immunity of the patient and Dr. Mukherjee has failed to
y
take note of the said consequences. [Para 27] [109-D-E]
..
10.3. After taking over the treatment of the patient and
detecting TEN, Dr. Halder ought to have necessarily
verified the previous prescription that has been given to
=--i
E the patient. On 12th May, 1998 althougl:l 'depomedrol'
was stopped, Dr. Halder did not take any remedial
measures against the excessive amount of 'depomedrol'
that was already stuck in ·the patient's body and added
1more fuel to the fire by prescribing a quick acting steroid
F 'Prednisolone' at 40mg three times daily, which is an
excessive dose, considering the fact that a huge amount
of "Depomedrol" has been a"lready accumulated in the
body. Life saving 'supportive therapy' including IV fluids/
electrolyte replacement, dressing of skin wounds and
G 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
H for TEN patients was not pr:ovided by ,Dr. Halder. Further
{
MALAY KUMAR GANGULY v. DR. SUKUMAR
21
MUKHERJEE AND ORS.
'vital-signs' of a patient ~uch as temperature, pulse,
A
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 moni~ored regularly is certainly an act of B
negligence. [Para 27] [109-E-H; 110-A-B]
10.4. Occlusive dressing were carried as a result of
which the infection had increased. Dr Halder's
prescription was against the Canadian treatment
protocol. It is the duty of the doctors to prevent further C
spreading of infections. How that is to be done is the
doctors concern. Hospitals or nursing homes where a
patient is taken for better treatment should not be a place
for getting infection. [Para 27] [110-C-D]
D
10.5. After coming to know that the patient is suffering
from TEN, Dr. Abani Roy Chowdhury ought to have
ensured that supportive therapy had been given. He had
treated the patient along with Dr. Halder and failed to
provide any supportive therapy or advise for providing
E
IV fluids or other supplements that is a necessity for the
patient who was critically ill. [Para 27] [110-E]
11.1. As regards AMRI, it may be noticed:
(i) Vital parameters of Anuradha were not examined
F
between 11.05.1998 to 16.05.1998 (Body Temperature,
Respiration Rate, pulse, BP and urine input and output)
(ii) l.V. Fluid not administered. (l.V. fluid administration
is absolutely necessary in the first 48 hours of treating
G
TEN) [Para 27] [110-F-H; 111-A]
11.2. As regards, Dr. Balaram Prasad, it may be
noticed:
H
22
SUPREME COURT REPORTS [2009] 13 (ADDL.) S.C.R.
A
(i) Most Doctors refrain from using steroids at the later
stage of the disease - due to the fear of Sepsis, yet he
+
added more steroids in the form of quick - acting
"Prednisolone" at 40g three times a day.
B
(ii) He stood as second fiddle to the treatment and
failed to apply his own mind.
(iii) No doctor has the right to use the drug beyond
the maximum recommended dose. [Para 27] [111-A-D]
-+-·
c
11.3.