2009 (8) TMI 1229 - SC - Indian Laws

Medical Negligence - death of Anuradha by Doctors' rash and negligent act amounting to culpable homicide by advising, prescribing and treating the deceased with steroid drugs - Offence punishable u/s 304 A - Whether the treatment of Anuradha was in accordance with the medical protocol - Kunal and Anuradha came on a vacation to Calcutta on 1st April, 1998, principally to attend a wedding in the family. Anuradha supposedly, after eating some Chinese food in some restaurant, developed fever and skin rash on or about 25.4.1998. Respondent No. 1, Dr. Sukumar Mukherjee, indisputably is a very reputed Physician. Anuradha and Kunal were advised to consult him. She was diagnosed to be suffering from Anglo-Neurotic Oedema with allergic vasculitis'. Respondent No. 1 prescribed Depomedrol stat (immediately) injection 80 mg. on a twice daily schedule(B.I.D) for 3 days to be followed by other oral steroids. One injection was given by him. She, however, breathed her last on 28th May, 1998. Deceased (Anuradha), it is conceded, was suffering from 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 world. HELD THAT - In our opinion, the answer must be rendered in the negative. Those who support use and administration of steroid do so with note of caution. They in no uncertain 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 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. No doctor posed unto themselves a basic question why despite use of steroid, condition of the 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 could not have been used and only Solumedrol could have been used. Kunal in his evidence explained the difference between the two. Dr. Mukherjee in his deposition indirectly accepted the same. Each of those pro-steroid group spoke of a single injection. Nobody 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 deed of confusion was sought to be created between one kind of steroid and another. Vague questions were asked from the experts to show that steroids may be used but Dr. Pasricha stated that only a quick acting steroid should be used. Depomedrol is not a quick acting steroid. As noticed hereinbefore, precautions as also the course of actions suggested by the authors have not been undertaken by the respondents. It is to be noted that the learned authors' expertise in the field is neither in doubt nor in dispute, particularly when both parties have extensively relied thereupon. Even the suspected offending drug was not withdrawn at later stages. This drug is considered to be a real risk for the patient suffering from TEN. The medicine has also been administered having regard to the physical condition of the patient. They were required to be given only as a part of the total program. We may also place on record that there has been a cleavage of opinion in regard to mortality rate. Whereas according to the one group of experts in TEN patients when properly treated and in particular given supportive treatment, the mortality rate is 0-10%' the respondents contend that that in fact the mortality rate is quite high being 30-70%. We would assume that the mortality rate is very high. If that be so, we feel that the doctors should have been more careful. They should have treated the patient upon exercise of more care and caution. For the 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 We are, therefore, of the opinion that the universally accepted medicated treatment protocol had also not been followed. It is also to be noted at this juncture, that there may well be a difference of opinion on the course of 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 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 of steroids as also lack of judgment. RIGHT OF THE PATIENT TO BE INFORMED - 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 affect or some reaction is anticipated, he should be informed thereabout. It was not done in the instant case. CONTRIBUTORY NEGLIGENCE - To conclude, it will be pertinent to note that even if we agree that there was interference by Kunal Saha during the treatment, it in no way diminishes the primary responsibility and default in duty on part of the defendants. In spite of a possibility of him playing an over-anxious role during the medical 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. NON-JOINDER OF NECESSARY PARTIES - We must bear in mind that negligence is attributed when existing facilities are not availed of. Medical negligence cannot be attributed for not rendering a facility which was not available. In our opinion, if hospitals knowingly fail to provide some amenities that are fundamental for the patients, it would certainly amount to medical malpractice. As it has been held in Smt. Savita Garg 2004 (10) TMI 637 - SUPREME COURT , that a hospital not having basic facilities like oxygen cylinders would not be excusable. Therein this Court has opined that even the so-called humanitarian approach of the hospital authorities in no way can be considered to be a factor in denying the compensation for mental agony suffered by the parents. The aforementioned principle applies to this case also in so far as it answers the contentions raised before us that the three senior doctors did not charge any professional fees. In any event, keeping in view of the said decision, we are of the firm opinion that notices to a large number of persons and withdrawal of cases against some of them by itself cannot be considered to be a relevant factor for dismissal of these appeals. CIVIL LIABILITY UNDER TORT LAW AS ALSO UNDER CONSUMER PROTECTION ACT - It is noteworthy that standard of proof as also culpability requirements u/s 304A of IPC stands on an altogether different footing. On comparison of the provisions of Penal Code with the 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 rashness under torts may not amount to same u/s 304A. INDIVIDUAL LIABILITY OF THE DOCTORS - . 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 the patient. On 12th May, 1998 although 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 more fuel to the fire by prescribing a quick acting steroid Prednisolone' at 40mg three times daily, which is an excessive dose, considering the fact that a huge amount of Depomedrol has been already accumulated in the body. 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 IV fluids or other supplements that is a necessity for the patient who was critically ill. So far as the judgment of the Commission is concerned, it was clearly wrong in opining that there was no negligence on the part of the hospital or the doctors. We are, however, of the opinion, keeping in view the fact that Dr. Kaushik Nandy has done whatever was possible to be done and his line of treatment meets with the treatment protocol of one of the experts, viz. Prof. Jean Claude Roujeau although there may be otherwise difference of opinion, that he cannot be held to be guilty of negligence. CONCLUSION - We remit the case back to the Commission only for the purpose of determination of quantum of compensation . The principles of determining compensation are well-known. We may place on record a few of them. Loss of wife to a husband may always be truly compensated by way of mandatory compensation. How one would do it has been baffling the court for a long time. For compensating a husband for loss of his wife, therefore, courts consider the loss of income to the family. It may not be difficult to do when she had been earning. Even otherwise a wife's contribution to the family in terms of money can always be worked out. Every housewife makes contribution to his family. It is capable of being measured on monetary terms although emotional aspect of it cannot be. It depends upon her educational qualification, her own upbringing, status, husband's income, etc. This Court, we may notice, has laid down certain norms for grant of compensation for the death of members of family including the loss of child in some of its decisions. See Lata Wadhwa v. State of Bihar 2001 (8) TMI 1444 - SUPREME COURT and R.K. Malik and Anr. v. Kiran Pal and Ors. 2009 (5) TMI 1006 - SUPREME COURT The Commission must, therefore, while arriving at the adequate compensation bear in mind all these relevant facts and circumstances. The 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 the element of mens rea must be shown to exist. For an act to amount to criminal negligence, the 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 the basis for prosecution. To prosecute a medical professional for negligence under 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. In the instant case, negligent action has been noticed with respect to more than one respondent. A cumulative incidence, therefore, has led to the death of the patient. It is to be noted that doctrine of cumulative effect is not available in criminal law. The complexities involved in the instant case as also differing nature of negligence exercised by various actors, make it very difficult to distil individual extent of negligence with respect to each of the respondent. In such a scenario finding of medical negligence u/s 304A cannot be objectively determined. In view of our discussions made hereinbefore, we are of the opinion that for the death of Anuradha although Dr. Mukherjee, Dr. Halder, Dr. Abani Roy Chowdhury, AMRI, Dr. B. Prasad were negligent, the extent thereof and keeping in view our observations made hereinbefore, it cannot be said that they should be held guilty for commission of an offence u/s 304A of the IPC. We furthermore in a case of this nature do not intend to exercise our discretionary jurisdiction under Article 136 of the Constitution of India having regard to the fact that a judgment of acquittal has been recorded by the Calcutta High Court. Further the statement made by the High Court that the transfer certificate was forged by the patient party is absolutely erroneous, as Dr. Anil Kumar Gupta deposed before the trial court that he saw the transfer certificate at AMRI's office and the words for better treatment were written by Dr. Balaram Prasad in his presence and these words were written by Dr. Prasad, who told it would be easier for them to transport the patient. In a case of this nature, Kunal would have expected sympathy and not a spate of irresponsible accusation from the High Court. For the reasons aforementioned, the criminal appeals are dismissed. As regards the civil appeal, the matter is remitted to the National Commission for determining the compensation with a request to dispose of the matter as expeditiously as possible and preferably within a period of six months from the date of receipt of a copy of this judgment. civil Appeal is disposed of accordingly. We, keeping in view the stand taken and conduct of AMRI and Dr. Mukherjee, direct that costs of ₹ 5,00,000/- and ₹ 1,00,000/- would payable by AMRI and Dr. Mukherjee respectively. We further direct that if any foreign experts are to be examined it shall be done only through video conferencing and at the cost of respondents.

Summary

Issues Involved:
1. Medical Negligence
2. Criminal Liability under Section 304A IPC
3. Deficiency in Service under Consumer Protection Act
4. Expert Evidence and Admissibility
5. Burden of Proof
6. Contributory Negligence
7. Non-joinder of Necessary Parties
8. Quantum of Compensation

Issue-wise Detailed Analysis:

1. Medical Negligence:
The court examined whether the doctors adhered to the standard treatment protocols for Toxic Epidermal Necrolysis (TEN). It was found that the administration of Depomedrol at 80 mg twice daily was excessive and not recommended for TEN patients. The doctors failed to provide necessary supportive therapy, including IV fluids and monitoring vital signs. The court held that the treatment given was not in accordance with accepted medical practice, thus constituting negligence.

2. Criminal Liability under Section 304A IPC:
The court analyzed whether the negligence amounted to criminal liability under Section 304A IPC, which requires a high degree of negligence. It concluded that although the doctors were negligent, the negligence did not reach the level of gross negligence required for criminal liability. The court also noted the complexities involved and the cumulative effect of negligence by multiple doctors, making it difficult to attribute individual criminal liability.

3. Deficiency in Service under Consumer Protection Act:
The court found that there was a clear deficiency in service provided by the doctors and the hospital. The hospital failed to maintain proper records, provide necessary supportive care, and adhere to the treatment protocol. The court emphasized that patients have a legitimate expectation of receiving proper care, especially from reputed doctors and hospitals.

4. Expert Evidence and Admissibility:
The court discussed the admissibility of expert opinions (Exhibits 4, 5, and 6). It held that while these exhibits were not admissible in the criminal trial due to lack of cross-examination, they were admissible in the proceedings before the National Commission under the Consumer Protection Act. The court emphasized the importance of expert evidence in medical negligence cases.

5. Burden of Proof:
The court stated that once the complainant makes a prima facie case of negligence, the burden shifts to the doctors and the hospital to prove that there was no lack of care or diligence. The court noted that the principle of res ipsa loquitur (the thing speaks for itself) could be applied in civil cases to shift the burden of proof.

6. Contributory Negligence:
The court rejected the argument that Kunal Saha's interference contributed to the negligence. It held that even if there was some interference, it did not absolve the doctors and the hospital of their primary responsibility to provide proper care. The court noted that the alleged interference was not supported by the hospital records.

7. Non-joinder of Necessary Parties:
The court dismissed the argument that the case should be dismissed due to non-joinder of necessary parties, such as other doctors who treated Anuradha in Mumbai. It held that the complainant is not required to proceed against all possible parties and can choose to proceed against those who are primarily responsible.

8. Quantum of Compensation:
The court remitted the case back to the National Commission to determine the quantum of compensation. It directed the Commission to consider all relevant factors, including pecuniary and non-pecuniary damages, and to dispose of the matter expeditiously. The court also imposed costs on AMRI and Dr. Mukherjee for their conduct.

Conclusion:
The criminal appeals were dismissed, and the civil appeal was remitted to the National Commission for determining the compensation. The court directed that costs be paid by AMRI and Dr. Mukherjee. The judgment highlighted the importance of adhering to medical protocols, the admissibility of expert evidence, and the burden of proof in medical negligence cases.