Malay Kumar Ganguly Vs. Dr. Sukumar Mukherjee and ors. - Court Judgment

Excerpt:
- medical neglitgence basic amenities in hospital: [s.b. sinha & deepak verma, jj] failure to provide basic amenities in hospital amounts to medical mal practice but hospital is not bound to provide facilities for all treatments. further held on facts, treating a patient suffering from the disease, ten, in burns wards was highly desirable but hospital was not obliged to have a separate burns ward. medical negligence arises when existing facilities are not properly made use of. contributory negligence: [s.b. sinha & deepak verma, jj] contributory negligence by patient or his relative/attendant alleged interference by patients husband who himself was a doctor, did not absolve hospital and treating doctors of their primary responsibility to provide proper medical care/treatment to patient. however, contributory negligence, if any, is relevant for ascertaining damages. duty of nurse: [s.b. sinha & deepak verma, jj] treatment of a patient suffering from infection held, it cannot be accepted that in the name of preventing infection to themselves, nurses would not keep a watch over patient, or they would not come to see patient or to administer medicine. duty of hospital: [s.b. sinha & deepak verma, jj] failure to prevent nosocomial infections ie., diseases originating in hospitals held, it is the responsibility of hospital to prevent such infections, specially in a case where patient has high risk of infection due to nature of disease suffered (ten in this case). mental agony: [s.b. sinha & deepak verma, jj] liability, if any, where doctors in a hospital did nto charge their professional fees held, on facts, liability still subsisted, on account of mental agony suffered by patient and/or by family. - despite administration of the said injection twice daily, anuradha's condition deteriorated rapidly from bad to worse over the next few days. (iv) respondents failed to adhere to the treatment protocol as outlined in the table of the textbook 'cutaneous medicine and surgery' authored by prof. 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. (x) at amri records of vital parameters like temperature, pulse, blood pressure; 5 who had inserted the words 'for better treatment' in his presence, which was also supported by mr. (xv) the transfer certificate when issued, in any event, must be held to be `for better treatment' as otherwise transfer of a patient from one hospital to the other, in the situation of the present case, was not necessary. 3 and accepted by the high court is not borne out from the record which clearly shows that he was closely involved in the treatment of anuradha at amri. (xviii) the telephone bills brought on record clearly show that numerous calls were made by dr. 3's residence as well as to his office, during anuradha's stay at amri which clearly established that respondent no. (xix) the high court has failed to consider the previous decisions of this court on criminal negligence, as in the instant case gross negligence on the part of the respondents establishes the offence committed by them under section 304a of the indian penal code. 3 having not been involved in the treatment of the deceased, the prosecution has miserably failed to prove its case.s.b. sinha, j.a. introduction a. 1. background facts:1. 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.2. 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, 1998.3. 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, 1998.4. 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.5. 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 304a of the indian penal code.6. 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.7. 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).8. 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.9. 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.10. 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 304a 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.11. the west bengal medical council dismissed the complaint filed by dr. kunal by its order dated 1st july, 2002.12. on 25th may, 2003 the complainant-kunal withdrew o.p. no. 179/2009 filed before the commission against the doctors/breach candy hospital.13. 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.14. 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 2005.15. 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:16. 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 forgery was arrived at by the high court without any application of mind as dr. anil kumar gupta testified that it was respondent no. 5 who had inserted the words 'for better treatment' in his presence, which was also supported by mr. t.r. nehra, handwriting expert.(xv) the transfer certificate when issued, in any event, must be held to be `for better treatment' as otherwise transfer of a patient from one hospital to the other, in the situation of the present case, was not necessary.(xvi) the claim that the appellant had interfered in the treatment and had been responsible for his wife's death is absolutely incorrect inasmuch as his name did not even appear in any of the hospital records suggestive of any interference whatsoever.(xvii) the alleged defence of alibi resorted to by respondent no. 3 and accepted by the high court is not borne out from the record which clearly shows that he was closely involved in the treatment of anuradha at amri.(xviii) the telephone bills brought on record clearly show that numerous calls were made by dr. kunal saha to respondent no. 3's residence as well as to his office, during anuradha's stay at amri which clearly established that respondent no. 3 was involved with anuradha's treatment.(xix) the high court has failed to consider the previous decisions of this court on criminal negligence, as in the instant case gross negligence on the part of the respondents establishes the offence committed by them under section 304a of the indian penal code. (xx) negligence in fact in anuradha's treatment had been admitted by the respondents at different stages of the proceedings.a.3. submissions of respondents17. mr. kailash vasdev, learned senior counsel appearing for respondent nos. 1 and 2 would submit:(i) kunal misled the doctors from time to time on the drugs/treatment to be administered to anuradha.(ii) the pathological reports which were carried out on the basis of the prescription of respondent no. 1 had never been shown to him.(iii) a panel of elected committee of the west bengal medical council being an expert body having come to a specific finding vis-`-vis the respondents that there had been no deficiency or negligence on the part of the doctors and use of the drugs is demonstrative of the fact that respondents had not committed an offence under section 304a of the indian penal code.18. mr. ranjan mukherjee, learned counsel appearing on behalf of respondent no. 3 contended:(i) it stands admitted by the appellant during his cross-examination that respondent no. 3 came to amri on 12th may, 1998 hours after dr. b.n. halder came there.(ii) there is no evidence that dr. b.n. halder and respondent no. 3 were together at amri or that those they discussed about the treatment to be given to the patient.(iii) dr. b.n. halder in his examination under section 313 of the code of criminal procedure has admitted that the prescription was written by him and, therefore, respondent no. 3 cannot be said to have any liability.(iv) the plea of the appellant that a joint prescription was made by respondent nos. 2 and 3 having been found to be in the handwriting of kunal himself must be held to be a self-serving document.(v) apart from making the joint prescription, respondent no. 3 having not been involved in the treatment of the deceased, the prosecution has miserably failed to prove its case.(vi) so far as the certificate of transfer of the patient is concerned, the same admittedly being interpolated, no credence thereto can be attached.(vii) as no witness has testified in support of the allegation that he was the principal physician of anuradha during her stay at amri, the courts below must have correctly held.(viii) respondent no. 3 having been acquitted by both the courts, this court should not exercise its jurisdiction under article 136 of the constitution of india as the view taken by the courts below is a plausible one.b. proceedingsb.1. trial court proceedings19. the common defence of all the respondents in the case is denial of material allegations brought against them as also false implication. separate defences, however, have been entered into by each of the respondents. we would notice them in seriatum:(i) dr. sukumar mukherjee examined anuradha saha (deceased) only on 7th may, 1998 and 11th may, 1998. he left india on 11th may, 1998 which was within the knowledge of her husband. he treated anuradha as per medical protocol. he diagnosed her disease as allergic/hypersensitivity vasculitis. depomedrol was correctly prescribed, being required for the disease anuradha had been suffering from. the dose prescribed was also correct. he prescribed certain tests to be taken on 7th may as also on 11th may but he was not apprised of the results of those tests. on 11th may, he had also prescribed the requisite supportive treatment which was necessary for the recovery of anuradha.(ii) dr. baidyanath halder examined the patient for one day only on 12th may, 1998. he diagnosed the disease as toxic epidermal necrolysis (ten) correctly and prescribed medicines as per the treatment protocol noted in the text books. he examined the patient having been requested by a group of his students who were friends of anuradha's husband. he did not charge any fees. he prescribed all necessary supportive therapy required for the patient of ten. he had not been given any feedback by the husband of the deceased after 12th may, 1998.(iii) dr. abani roychowdhury had never seen the patient nor treated her at amri at any point of time. he being attached to amri visited the hospital once in a week at the outdoor. on 12th may, 1998 having been requested by dr. kunal saha as also dr. prasad, he went to the cabin only for the purpose of boosting the patient's morale. he neither treated her nor was he a member of the team of doctors treating anuradha at amri. as despite requests he had not participated in the treatment of the deceased, kunal implicated him falsely.(iv) respondent no. 4 contended that the appellant was fully aware of the absence of a burn ward in amri at the time of admission of the deceased patient. furthermore, the deceased was shifted to a vip cabin in the hospital which was fully isolated, with environmental temperature control. moreover it was kunal, himself who had prevented the nursing staff from taking the temperature, blood pressure etc. also the infection, as alleged, aggravated due to transportation of the deceased from kolkata to mumbai. moreover non administration of iv fluids is a matter of judgment for the treating doctor and is not open to the hospital management to interfere with.(v) respondents 5, dr. balaram prasad contended that the medical treatment sheet of amri dated 11.5.1998, would show that he not only attended the patient for the first time but he also meticulously noted the diagnosis and continued the same medicine for one day as was prescribed by dr. mukherjee. before, however, medicines as per his prescription could be administered, respondent nos. 1 and respondent 2 took over the treatment.(vi) respondent 6, denied the allegation of the appellant that he did not give effect to the medical protocol while dressing anuradha. according to him, reference was made to him by respondent no. 5 for the sole purpose of dressing the patient. he took care of the patient as far as wound care was concerned and did the dressing as per medical norms in support whereof reliance was placed on the opinion of dr. jean claude roujeau of france.20. respondents did not plead guilty, they were put to trial in the criminal matter.21. before the learned chief judicial magistrate, south - 24 parganas, alipore, the prosecution examined 11 witnesses. the complainant malay kumar ganguly examined himself as pw-1 whereas husband of the deceased kunal examined himself as pw-2. dr. balaram prasad who was a visiting consultant of amri at the relevant time was examined as pw-3. he is respondent no 5 in the connected civil appeal. dr. aloke majumdar attached to the b.r. singh railway hospital, sealdah as senior divisional medical officer (ent) examined himself as pw-4. pw-5 is dr. anil kumar gupta who was attached to the sub-divisional hospital, asansol as a medical officer. the president of the west bengal medical council dr. ashoke kumar chowdhury was examined as pw-6. prasenjit bhattacharjee, a sub-inspector of kolkata police who was attached to the lake police station at the relevant time was examined as pw-7. dr. anil shinde, a medical practitioner and manager of pharmacia india limited, gurgaon, haryana (the company manufacturing depomedrol) was examined as pw-8. dilip kumar ghosh who was the registrar, west bengal medical council has been examined as pw-9. dr. faruk e. udwadia, a consultant physician with specialization in critical care and respiratory medicine of breach candy hospital, mumbai who treated the deceased from 12th may, 1998 to 18th may, 1998 was examined as pw-10. dr. salil kumar bhattacharjee, professor of pharmacology institute of medical science, benaras hindu university was examined as an expert witness pw-11 on behalf of the prosecution.22. the defence has also examined 3 witnesses. dw-1 smt. sutapa chanda is the nursing superintendent of a.m.r.i. dr. kaushik nandy, a plastic surgeon attached to amri, who is a respondent in the connected civil appeal and had treated the deceased, was examined as dw-2. mihir pal, a group `d' staff attached to asansol sub-sivisional hospital was examined as dw-3.23. the prosecution proved as many as 20 documents, whereas the defence has proved 4 documents.24. before the learned trial judge as also before the commission, the parties hereto had relied upon several medical text books of different authors, journals, research papers/ deliberations of the national conference on medical science, transcripts of cds, package insert, etc. one audio cassette has been produced on behalf of the complainant to prove the conversation which took place between him and the president of the west bengal medical council dr. ashoke kumar chowdhury.