Holding

The Court held that the doctors' negligence, while evident, did not amount to the gross negligence required for conviction under Section 304A IPC, leading to dismissal of the criminal appeals and remand of the civil appeal for compensation.

Summary

The case concerned the death of Anuradha Saha, who was treated for Toxic Epidermal Necrolysis (TEN) by several doctors in Kolkata and Mumbai. The complainant alleged that the doctors prescribed excessive doses of the steroid Depomedrol and failed to provide essential supportive care, constituting criminal negligence under Section 304A IPC. The Supreme Court examined the admissibility of expert opinions, the burden of proof, and whether the cumulative negligence of multiple physicians could be attributed to each individual. It held that although the doctors were negligent, the negligence did not reach the high degree required for criminal liability under Section 304A, and the doctrine of cumulative effect is unavailable in criminal law. Consequently, the criminal appeals were dismissed, while the civil matter was remitted to the National Consumer Disputes Redressal Commission for determination of compensation. Costs of Rs.5,00,000 and Rs.1,00,000 were imposed on AMRI and Dr. Mukherjee respectively.

Issues considered

The applicability of Section 304A IPC to medical negligence and the required standard of gross negligence.
Whether the Consumer Protection Act, 1986 procedures and evidence rules apply to the Commission proceedings.
The admissibility and weight of expert medical opinions under Section 45 of the Evidence Act.
The burden of proof and the effect of a cleavage of expert opinion on establishing negligence.
The relevance of the doctrine of cumulative effect in criminal negligence cases.
The duty of informed consent and disclosure of risks in TEN treatment.

Legislation cited

Code of Criminal Procedures. 313
Consumer Protection Act, 1986s. 12, s. 13, s. 14
Indian Evidence Act, 1872s. 45
Indian Penal Code, 1860s. 304A

Subjects

medical negligencecriminal negligenceSection 304A IPCConsumer Protection Actexpert evidenceres ipsa loquiturcumulative negligenceinformed consentTEN (Toxic Epidermal Necrolysis)steroid dosageburden of proof

Judgment

[2009] 13 (ADDL.) S.C.R. 1

MALAY KUMAR GANGULY A
v.
DR. SUKUMAR MUKHERJEE AND OTHERS
(Criminal Appeal Nos. 1191-1194 of 2005)

AUGUST 7, 2009
B
[S.B. SINHA AND DEEPAK VERMA, JJ.]

CONSUMER PROTECTION ACT, 1986/PENAL CODE,
1860:
c
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
- 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.

Doctrine of legitimate expectation - Applicability of -
D 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
USA, came to India and suffered some health problem
F
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.
-1.
Dismissing the Criminal Appeals and remitting the
,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 1OJ (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 F
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.
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 ~
I
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] (63-0-
E]

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
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; 75-
F
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 -.t-
mg 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
drug manufacturer, Pharmacia. [Para 15] [77-C".'G]
0 '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
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 check-
ups were not done. [Para 16] [79-8-H; 80-A-C]

"Dermatology in General Medicine ( Fitz Patrick's)" (5th
y
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. E
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 F
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.
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 +
had skin rash. By the time, she came to AMRI on 11th
c 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, -y-
infection 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
terms state that the same should be used at a preliminary
F
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
G
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 pro-
steroid 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] [88-
C-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
said purpose, if they had not been able to diagnose the
c 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; 91-
F 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] -+-
7.3. Dr. K. Nandy in his evidence stated that he was
c 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
elder brother of Kunal came to Mumbai on 17th May, 1998
G
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.
Spme adverse remarks have also been recorded with
H
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; 96-
y A-E]

- 7.5. Respondents also sought to highlight on the
number of antibiotics which are said to have been
D

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
pages. No party· had relied on any evidence other tha"!
c 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
Anuradha. [Para 22] (98-A-D] y
D
...
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 -j-
in 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
.by i~elf, thus, might not be a contributory factor although -4-
'-::-
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
apply a stringent standard of disclosure in conjunction
0
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.
G
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.

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
Ramanatha Aiyar, 3rd ed. 2005, p. 3161, referred to.
D ..,...
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] [107-8-
C] 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
steroid without foreseeing its implications is certainly an
B 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 -t-
permissible 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
more fuel to the fire by prescribing a quick acting steroid 1-
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.

(ii) He stood as second fiddle to the treatment and
B
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. 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.
However, keeping in view the fact that Dr. Kaushik Nandy
has done whatever was possible to be done and his line
D of treatment meets with the treatment protocol of one of y
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. [Para 27] [111-D-E]

12.1. The matter is remitted back to the Commission
E only for the purpose of determination of quantum of
compensation. [Para 28] (111-F]

12.2. Loss of wife to a husband may always be truly
compensated by way of monetary compensation. How -+-
F 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
G
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

H
MALAY KUMAR GANGULY v. DR. SUKUMAR 23
MUKHERJEE AND ORS.
income, etc. [Para 28) [113-8-D] A
+
12.3. The Commission must, therefore, while arriving
at the adequate compensation bear in mind all these
relevant facts and circumstances. [Para 28] (114-D]

Oriental Insurance Company Limited v. Jashuben and B
Others (2008) 4 SCC 162; Gobald Motor Service Ltd.,
Allahabad v. R.M.K. Veluswami, AIR 1962 SC 1; Lata
Wadhwa v. State of Bihar; R.K. Malik and Anr. v. Kiran Pal &
Ors. 2009 (8) SCALE 451 and R.O. Hattangadi v. Pest Control
(India) (P) Ltd. AIR 1995 SC 755, referred to. C

Livingstone v. Rawyards Coal Co. (1880) 5 AC 25; Davis
v. Powell Duffrya Associated Collieries Ltd. (1942) AC 601
and R. v. Prentice and R v. Adomako [1993) 4 All ER 935,
referred to. D

13. 1. It is, however, well settled that so 'far as the
negligence alleged to have been caused by· medical
practitioner is concerned, to constitute negligence,
simple lack of care or an error of judgment is not
sufficient. Negligence must be of a gross or a very high E
degree to amount to Criminal Negligence. Medical science
is a complex science. Before an inference of medical
negligence is drawn, the court must hold not only
existence of negligence but also omission or
commission on his part upon going into the depth of the F
working of th~ professional as also the nature of the job.
The cause of death should be direct or proximate. A
distinction must be borne in mind between civil action
and the criminal action. [Para 29] (115-E-G]
G
13.2. 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 H

/
24 SUPREME COURT REPORTS [2009] 13 (ADDL.) S.C.R.

A 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
B 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.
[Para 29] [115-H; 116-A-C]
c 13.3. It is also of some great significance that both
in the criminal as also the civil cases, the concerned
doctors took recourse to the blame game. Some of them
tried tG-Shirk their individual responsibilities. [Para 30]
[116-D]
D
13.4. It is generally expected that very senior doctors
would behave responsibly, and they were entitled to take
any defence -which is available to them but they should
not resort to mudslinging. This being a case where both
E sides being doctors, fair dealings were expected from
them. [Para 30] [118-E]

R v. Yogasa Karan [1990] 1 NZLR 399, referred to.
+
'Errors, Medicine and the Law', 'by Alan Merry and t
F Alexander ~cCall Smith, Cambridge University Press,
2001 ed. p.14., referred to.

14.1. A patient would feel the deficiency in service
having regard to the cumulative effect of negligence of
G all concerned. Negligence on the part of each of the
treating doctors as also the hospital may have been
....,_
contributing factors to the ultimate death of the patient.
But, then in a case of this nature, the court must deal with
the consequences the patient faced keeping in view the
cumulative effect. [Para 31] [118-F-G]
H
MALAY KUMAR GANGULY v. DR. SUKUMAR 25
MUKHERJEE AND ORS.
14.2. In the instant case, negligent action has been A
+ 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 B
negligence exercised by various actors, make it very
difficult to distil individual extent of negligence with
-t respect to each of the respondent. .1n such a scenario
finding of medical negligence under section 304-A cannot
be objectively determined. [Para 31] [118-G-H; 119-A-B] c

14.3. This Court is 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 the observations made
""'. hereinbefore, it cannot be said that they should be held D
guilty for commission of an offence under Section 304-A
of the Indian Penal Code. Furthermore in a case of this
nature this Court does not intend to exercise its
discretionary jurisdiction under Article 136 of the
Constitution of India having regard to the fact that a E
judgment of acquittal has been recorded by the Calcutta
High Court. [Para 32] [119-C-D]
-~ 15. This Court expresses agony in placing on record
that the Calcutta High Court in its judgment has made F
certain observations which apart from being not borne
out from the records, are also otherwise highly
undesirable. [Para 33] [119-E-F]

16. Keeping in view the stand taken and conduct of
AMRI and Dr. Mukherjee, it is directed that costs of Rs. G
5,00,000/- and Rs. 1,00,000/- would be payable by AMRI
:~
and Dr. Mukherjee respectively. It is further directed that
if any foreign experts are to be examined it shall be done
only through video conferencing and at the cost of
H
26 SUPREME COURT REPORTS [2009] 13 (ADDL.) S.C.R.

A respondents. (Para 34) (123-A-B]

Case Law Reference:

(1999) 1 sec 280 relied on Para 10

B (2003) 8 sec 152 relied on Para 13

1950 SCR 459 relied on Para 13
(2002) s sec 635 relied on Para 13

(2009) 12 SCR 54 relied on Para 13
c
(1998) 4 sec 39 referred to Para 20
(1979) 4 sec 119 referred to Para 20

(2008) 5 sec 130 referred to Para 20
D )'
2009 (7) SCALE 407 referred to Para 20
(2003) 8 sec 731 relied on Para 23

, ...:r. (2009) 3 sec .1 referred to Para 23

E (2005) 6 sec 1 referred to Para 23
(1957) 2 All ER 118 referred to Para 23

(1985) 1 All ER 635 (HL) referred to Para 23
(1992) 109 Aus LR 625 referred to Para 23
F
2001 HCA 18 referred to Para 23
(1980) 114 DLR 3d 1 referred to Para 23
(1997) 4 All ER 771 (HL) referred to Para 23
G
(1985) All ER 643 referred to Para 24
-../_
464 F.2d 772 (D.C. Cir. 1972), cert. denied, 409 U.S.
1064 (1972) referred to Para 24

H
MALAY KUMAR GANGULY v. DR. SUKUMAR 27
MUKHERJEE AND ORS .
.
8 Cal. 3d 229, 104 Cal. Rptr. 505, A
+
502 p .2d 1 (1972) referred to Para 24
37 Colo. App. 375,
549 P.2d 1099 (1976) referred to Para 24
B
2004 (8) SCALE 694 :
(2004) 8 sec 56 referred to Para 26
(2008) 4 sec 162 referred to Para 28
c
AIR 1962 SC 1 referred to Para 28
(2001) 8 sec 191 referred to Para 28
2009 (8) SCALE 451 referred to Para 28
AIR 1995 SC 755 referred to Para 28 D

(1880) 5 AC 25 referred to Para 28
(1942) AC 601 referred to Para 28
[1993] 4 All ER 935 referred to Para 29 E
[1990] 1 NZLR 399 referred to Para 30

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
Nos. 1191-1194 of 2005.
F
From the Judgment & Order dated 19.03.2004 of the High
Court of Calcutta in C.R.A. No. 83 & 84 of 2003, 295 & 1856
of 2002.

WITH
G
C.A. No. 1727 of 2007.

Kail ash Vasdev, Bhaskar P. Gupta, R. Venkatraman,
Shashi Bhushan Kumar, K.M. Singh, Dr. Kuna! Saha, Appellant
in person, Sanjay Kumar Ghosh, Aroop Banerjee, Ranjan
H
28 SUPREME COURT REPORTS [2009] 13 (ADDL.) S.C.R.

·A Mukherjee, Rupali S. Ghosh, Shantanu Bhowmick, Satish Vig,
K.L. Taneja, Avijit Bhattacharjee, Saumya Kundu, Subrata
Biswas, Premashish Choudhary, Jaidip Kar, Rana Mukherjee,
Suchit Mohanty, Anupam Lal Das, Lalit Bhasin, Bina Gupta,
Nina Gupta, Tulika Mukherjee, Swig in George for the appearing
B parties.

The Judgment of the Court was delivered by

S.B. SINHA, J.

c A. INTRODUCTION

A. 1. BACKGROUND FACTS:

The patient (Anuradha) and her husband Dr. Kunal Saha
(for short, "Kunal") were settled in the United States of America.
D 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, Kuna! has been engaged in research on H.1.V/
AIDS for the past 15 years.
E
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
F
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.
G 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

H

'
MALAY KUMAR GANGULY v. DR. SUKUMAR 29
MUKHERJEEAND ORS. [S.B. SINHA, J.]
injection twice daily, Anuradha's condition deteriorated rapidly A
+ 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 B
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
c
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 3oth D
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,
E
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.
F
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 G
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
H
30 SUPREME COURT REPORTS [2009] 13 (ADDL.) S.C.R.

A 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 Ha.Ider and Dr. +---
Abani Roy Chowdhury before the West Bengal Medical Council
B
(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
c 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.
D A large number of documents were also marked as exhibits. y
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/-
E
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
F filed by Dr. Kunal by its order dated 1st July, 2002.

On 25th May, 2003 the complainant-Kuna! withdrew O.P.
No.179/2009 filed before the Commission against the doctors/
Breach Candy Hospital.
G 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,
H filed a revision application being C.R.R. No. 1856 of 2002 for
MALAY KUMAR GANGULY v. DR. SUKUMAR 31
MUKHERJEE AND ORS. [S.B. SINHA, J.]
enhancement of the punishment imposed on Respondent Nos. A
+ 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 B
the criminal appeals and revision petitions together.

By a judgment and order dated 19th March, 2004 the
't
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
c
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. D

A.2. SUBMISSIONS OF APPELLANT:

2. Dr. Kuna! Saha, who appeared in person, made the
following submissions :-
E
(i) Respondent No.1 from the very beginning should
have referred Anuradha to a Dermatologist as she
had skin rashes all over her body.
A
(ii) Diagnosis of Respondent No.1 that Anuradha was
F
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 G
.+. 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
H
32 SUPREME COURT REPORTS [2009] 13 (ADDL.) S.C.R.

A 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
B prescribed under any clinical condition.

(b) For the said purpose the eviden.ce 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
c 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
D 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 -a'ml then quickly stop the
E 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
+
F 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
G 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
H stopping '"Depomedrol' after 12th May, 1998
34 SUPREME COURT REPORTS [2009) 13 (ADDL.) S.C.R.

A 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.
8
(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
c 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
D application of mind as Dr. Anil Kumar Gupta )C

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.
E (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.
F
(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
~
G 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
·-I
that he was closely involved in the treatment of
H Anuradha at AMRI.
MALAY KUMAR GANGULY v. DR. SUKUMAR 35
MUKHERJEE AND ORS. [S.B. SINHA, J.]
(xviii) The telephone bills brought on record clearly show A
....-- 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. B
(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 304-A of the Indian Penal c
Code.

(xx) Negligence in fact in Anuradha's treatment had
been admitted by the Respondents at different
""\ stages of the proceedings. D
A.3. SUBMISSIONS OF RESPONDENTS

3. Mr. Kailash Vasdev, learned senior counsel appearing
for Respondent Nos. 1 and 2 would submit :-
E
(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. F

(iii) A panel of elected Committee of the West Bengal
Medical Council being an Expert Body having come
to a specific finding vis-a-vis the Respondents that
there had been no deficiency or negligence on the G
part of the doctors and use of the drugs is
)..
demonstrative of the fact that Respondents had not
committed an offence under Section 304-A of the
Indian Penal Code.
H
36 SUPREME COURT REPORTS (2009] 13 (ADDL.) S.C.R.

A Mr. Ranjan Mukherjee, learned counsel appearing on
behalf of Respondent No.3 contendeq :- --+
!
(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
B
came there.
,,
(ii) There is no evidence that Dr. B.N. Halder and
Respondent No.3 were together at AMRI or that .:y-
those they discussed about the treatment to be
c 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·
D
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
E must be held to be a self-serving document.
t
(v) Apart from making the joint prescription,
Respondent No.3 having not been involved in the·
treatment of the deceased, the prosecution has +
'
F miserably failed to prove its case. •
.,
(vi) So far as the certificate of transfer of the patient is .,i
tr
concerned, the same admittedly being interpolated, '
r'
no credence thereto can be attached.

G (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
H
MALAY KUMAR GANGULY v. DR. SUKUMAR 37
MUKHERJEE AND ORS. [S.B. SINHA, J.]

the courts, this Court should not exercise its A
....- jurisdiction under Article 136 of the Constitution of
India as the view taken by the courts below is a
plausible one.

B. PROCEEDINGS B
8.1. TRIAL COURT PROCEEDINGS

4. 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 c
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,
~ D
1988. 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
E
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 F
treat:-i1CJnt 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 G
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 H
38 SUPREME COURT REPORTS [2009] 13 (ADDL.) S.C.R.

A 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.
B
(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
c 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

D
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
AMR! at the -time of admission of the deceased
E 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 ->--

F 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.
G
(v) Respondents 5, Dr. Balaram Prasad contended that --4
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
H noted the diagnosis and continued the same
MALAY KUMAR GANGULY v. DR. SUKUMAR 39
MUKHERJEE AND ORS. [S.S. SINHA, J.]
medicine for one day as was prescribed by Dr. A
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
B
appellant that he did not give effect to the medical
protocol while dressing Anuradha. According to him,
Y- 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
c
norms in support whereof reliance was placed on
the opinion of Dr. Jean Claude Roujeau of France.

Respondents did. not plead guilty, they were put to trial in
-~
the criminal matter. D

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
E
himself as PW-2. Dr. Balaram Prasad who was a visiting
consultant of AMRI at the relevant time was examined as PW-
1
' 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 F
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 G

~ 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. H
,.
40 SUPREME COURT REPORTS [2009) 13 (ADDI,..) S.C.R.
MALAY KUMAR GANGULY v. DR. SUKUMAR 41
MUKHERJEE AND ORS. [S.B. SINHA, J.]
Ill. Re : Dr. Sukumar Mukherjee: A
+
(i) He having been consulted by Dr. Kunal Saha since
the 4th week of April, 1998, i.e., at his residence,
at his chamber at Nightingale Diagnostic & Eye
Care Rresearch Centre Private Limited and
B
particularly on 3rd May, 1998, 4th May, 1998, 7th
May, 1998 as also on 11th May, 1998 at AMRI and
'"( his line of treatment having .been followed despite
his leaving abroad on the night of 11th May, 1998,
his defence that his prescription from the afternoon
of 11th May, 1998 became automatically redundant
c
and inoperative cannot be accepted from a doctor
of his status. Such a stand taken by him was not
only a motivated one but beyond the moral
obligation of a doctor to his patients. The medicine
-~
was prescribed by him [Corticosteriod, viz., D
' Depomedrol (Methyleprednisolone Acetate)]
without even diagnosing a disease. But, he did not
advise symptomatic therapy like bed rest, elevation
of the legs and bandage to reduce Oedema nor
prescribed any medicine for control of the E
underlying disease. It was held:

" ... Small vessel vasculitis are of different kinds of which
allergic vasculitis is one. It corresponds approximately to
Hypersensitivity Angilis. The term allergic is little F
contentious since it implies a immunological etiology which
may be an over simplification. Allergic vasculitis is the most
common part of Leucocytoclastic vasculitis in adults. It is
characterized by purpuric or necrotic skin lesions, with or
without systemic features. Rheumatoid Arthritis is the most
G
common association with coetaneous leucocytoclastic
... vasculitis ... "

(ii) At least on 11th May, 1998, Anuradha was correctly
diagnosed by Dr. A.K. Ghoshal as also the
.f
H
42 SUPREME COURT REPORTS [2009] 13 (ADDL.) S.C.R.

A following day by Dr. B.N. Halder, still application of
Corticosteriod Prednisolone for all these days in +
prohibitive quantity and dosing intervals with no
supportive therapy was continued. That made her
lose all her immunity to fight out bacteria and
B become immunosuppressed leading to
'Septicemia' or 'Septic shock'.

(iii) PWs 5 and 11 also deposed about high dose of
Depomedrol. Its adverse effects caused
'lmmunosuppression' and 'Septicemia' -which
c resulted in the death of Anuradha.

(iv) The working Manager of Pharmacia India Ltd., Dr.
Anil Shinde (PW-8) has categorically stated that the
maximum recommended dose of Depomedrol for
D any dermatological or other clinical condition is 40
mg to 120 mg once a week or once in two weeks
as per the severity of the disease and clinical need.
Depomedrol cannot be given 80 mg twice daily in
any Clinical condition and even in the right dose it
E is not recommended for TEN patients as it is a long
acting steroid. Therefore, musking of infection, latent
infections become active and opportunistic
infections are likely as it has immunosuppressive
action. The package insert of Depomedrol in U.S.A.
F indicates that Corticosteroids may musk some
signs of infections and new infections may appear
during their use.

(v) Another expert Dr. Salil Kumar Bhattacharya (PW-
11) has
\
gone further and stated that Depomedrol
G has a prolonged duration of action. The half life of
the drug is 139 hours for which 80 mg twice daily
is excessive which is dangerous for the patient and
the immediate adverse effect of overuse of this
steroid is immunosuppression and chance of
H opportunistic infection. Sepsis is a severe infective
;,
MALAY KUMAR GANGULY v. DR. SUKUMAR 43
MUKHERJEE AND ORS. [S.B. SINHA. J.]
condition which is systemic in nature and is caused A
+ by rapid growth and multiplication of infective
organism as opined by PW-11.

(vi) Dr. Anil Kumar Gupta (PW-5) made
correspondences with Pharmacia Upjohn to receive
8
the following reply:

" ... our package insert on Depomedrol does not
recommend the twice daily dose of injection
Depomedrol 80 mg. in any clinical condition ... "
c
(vii) In his opinion, the use of Depomedrol in high doses
can cause immunosuppression and H.P.A. Axis
suppression as per package insert.

(viii) Dr. Balaram Prasad who admittedly treated
Anuradha had doubt with regard to the treatment of D
the patient and sought immediate advice regarding
continuation of the drug from Dr. Mukherjee and
others. However, he was asked to continue with the
medicine by Dr. Mukherjee which was started by Dr.
Roychowdhury, the Dermatologist. E

(ix) Dr. Mukherjee did not follow the treatment
guidelines provided for in the Journals. The
resolution taken in an International Conference
known as Creteilis Experience, 1987 authored by F
J. Revus and J.C. Roujeau (Ref. Archives of
Dermatology, Vol. 123, pages 1156-57) had also
not been followed.

(x) Although steroids are used but the supposed
advantage of the said therapy are far outweighed G
by its drawbacks. It is not used as a standard
therapy in TEN.

(xi) Although use of Corticosteroid is advocated in the
treatment· of TEN, reports from early 1980s H
44 SUPREME COURT REPORTS [2009] 13 (ADDL.) S.C.R.

A condemn their use.
+
(xii) The husband of the deceased is a Non-Resident
Indian settled in America as a doctor. The
complainant examined doctors from different
corners of the country. On the other hand, the
B
witnesses examined on behalf of the defence were
one doctor, one Nursing Superintendent and one
employee of the Department of Health, Govt. of
West Bengal.
c (xiii) It is not denied by Dr. Mukherjee in his examination
under Section 313 of the Code of Criminal
Procedure that immunosuppression, infection and
sepsis are the serious adverse effects of
Corticosteroids as also the probable effect of the
D overuse and excessive dose of the said steroids y
including Depomedrol.

(xiv) Even Dr. Kaushik Nandy (DW-2) admitted that
immunosuppression can be a side-effect of
overuse or excessive use of Corticosteriods and
E
may cause a chance of infection in any patient. He
admitted that steroids should not be used as a
standard therapy for treatment of TEN.
~-
(xv) In Fitz Patrick's Dermatology for General Medicine,
F the text book on which both sides placed reliance,
it is stated that "Glucocorticosteroids (steroids)
may promote the risk of infection (Pneumonia,
Septicemia)".

G (xvi) Steroid was used in the Breach Candy Hospital, as
deposed by PW-10, to completely taper the dose
';'.~ as the patient had very high-circulating steroid level
in her body because of her receiving 120 mg. of
Prednisolone daily in Kolkata and it was done for
her safety only. The point with regard to
H
MALAY KUMAR GANGULY v. DR. SUKUMAR 45
MUKHERJEE AND ORS. [S~B. SINHA, J.]

.... Haemodialysis was not put to Dr. Udwadia and, A
thus, no benefit in this behalf can be given to
defence .
...
(vii) Dr. Kaushik Nandy (DW-2) has admitted_ that a very
high circulating steroid level in a patient may appear B
if large doses of steroids are administered.

(viii) Non-examination of some witnesses like the brother
of the deceased Amritava Roy and sisters of AMRI
was not very material.
c
Dr. Sukumar Mukherjee was accordingly held guilty of the
charge of negligence.

IV. Dr. Baidyanath Halder
i (i) He although diagnosed correctly but prescribed D
steroids. Although, according to him, he had
examined Anuradha only once and no feedback
about her condition was given to him. If he was so
sincere and careful, he could have collected the
information about the condition of the patient with E
regard to the result of his treatment from the
Hospital authorities or the patient party. He had
issued a certificate on 16th May, 1998. His
prescription of Prednisolone 40 mg. thrice daily and
Minabol twice daily was followed by the nurses of F
AMRI, as stated by Sutapa Chanda (DW-1).

(ii) Dr. Halder was intimated about the prescription of
Dr. Mukherjee and the fact that Anuradha had
already received 800 mg. of Depomedrol which is
G
equivalent to 1100 mg. of Prednisolone but despite
~ the same he had advised Prednisolone three times
./
a day without any supportive therapy which is
mandatory for the patient of TEN as accepted by
different universal protocols.
H
/
46 SUPREME COURT REPORTS (20~9] 13 (ADDL.) S.C.R.

A (iii) As Or. Halder advised against pricking of needles
~-
in case of such patients, no supportive treatment
could be administered.
.
(iv) In view of the certificate given by Dr. Halder, the
court had reason to believe that he treated the
B
patient from 12th May, 1998 at least upto 16th
May, 1998.

(v) Non-tapering of doses of steroid is in violation of 'r
the treatment protocol for the disease TEN. The
c principles of supportive care have been violated
totally in the prescription of Dr. Halder.

(vi) In his statement under Section 313 of the Code of
Criminal Procedure, he had taken a specific plea
0 that "journey from Kolkata ta--Bombay likely to y
enhance the danger", still, he had issued the
certificate.

(vii) The purported interpolation of three words "for
better treatment" did not make any difference, i.e.,
E in the certificate itself to show that it was issued at
the instance of the patient party.

(viii) The defence that the patient was removed at their
own risk is not correct as Dr. Saha did not furnish
F any risk bond and only some other person not
connected with the patient had endorsed the record
for taking the patient at his own risk. In any event,
such undertaking was not of much significance.

(ix) The accused doctor should not be allowed to raise
G the question of chance of infection in transit from
Kolkata to Mumbai as Anuradha was suffering from ~
TEN which is a non-infectious disorder and she was "'
found fit to travel from Kolkata to Mumbai. In view
of her physical condition which was found at Breach
H Candy Hospital, the certificate issued does not 1
'
MALAY KUMAR GANGULY v. DR. SUKUMAR 47
MUKHERJEE AND ORS. [S.B. SINHA, J.]
properly reflect the actual physical condition of the A
+ patient, which itself amount to avoidance of
responsibility on the part of the treating Physician.

V. Dr. Abani Roychowdhury

(i) There is nothing to show that Dr. Roychowdhury B
treated Anuradha except the entries which
appeared in the prescription of Dr. Mukherjee dated
11th May, 1998, viz., "May I request Dr. Abani
Roychowdhury to see her" and another
endorsement dated .15th May, 1998 wherein PW- C
3 Dr. 8. Prasad wrote to continue as advised by
Dr. Mukherjee and Dr. Abani Roychowdhury. There
is nothing to show that he issued any prescription.

(ii) The statement of DW-1 that Dr. Roychowdhury had D
been to AMRI is wholly unworthy of credence as
I
she is a hearsay witness having heard the same
from PW-2 who in his evidence did not state
thereabout.

(iii) The statement made by DW-2 in his affidavit E
affirmed in the case before the Commission stating
that "I carried out and suggested necessary
treatment in conformity with the general treatment
pattern prescribed by senior consultants, namely
O.P. Nos. 2 and 3 who were generally heading the F
medical team looking after the treatment of the
deceased. All the steps were taken to minimize
chance of infection and discomfort to the patient/
deceased" has not been proved as only a Xerox
copy of the same had been produced. G

~ (iv) The complainant has failed to establish the role of
Dr. Roychowdhury in the treatment of Anuradha.

VI. The defence story that Dr. Saha had interfered in
the matter of treatment, as deposed by DW-2 is not H
MALAY KUMAR GANGULY v. DR. SUKUMAR 49
MUKHERJEE AND ORS. [S.B. SINHA, J.]

death but was only a tentative one. It was silent A
about the antecedent cause or other significant
conditions- 'Contributing to the dea:h. The death
certificate could not rule out the possibility of
accidental, suicidal or homicidal cause of death.
The doctor who issued the death certificate was not B
examined. Thus immediate cause of death vis-a-
vis the link thereof with the treatment at Kolkata and
that too specially at the hands of Respondents 1 to
3 was not proved.

(vi) lmw~vement to her health noticed in the Mumbai
c
hospital after 25th May, 1998 ran contrary to the
contention of complainant.

Re : DR. MUKHERJEE
D
The allegation that he was responsible for causing the
death of Anuradha by his rash and negligent act not amounting
to culpable homicide by advising, prescribing and treating the
deceased with steroid drugs namely Depomedrol, 80 mg, IM
stat twice daily and other drugs in improper dosage at improper E
interval without any supportive treatment was rejected for the
following reasons :-

(i) Various tests advised by him were not undertaken
and he was not apprised of the treatment chart of
Anuradha for the period 3rd April, 1998 to 6th May, F
1998.

(ii) Anuradha admittedly was suffering from certain
allergic disorders which were aggravated due to the
intake of Chinese food and for treating such allergic G
disorders generally steroids would be used and
+ thus the trial court was not correct to hold that Dr.
f Mukherjee should not have prescribed
DepomedroL

(iii) There is nothing on record to show that the drug was H
50 SUPREME COURT REPORTS [2009] 13 {AODL.) S C R

A actually administered to the patient because no
feedback of the treatment was given to him.
-+

(iv) At the time of admission at AMRI, Dr. Mukheqee·s
prescription was not taken·into consideration. In fact
it was indicated that the patient was being treated
8
by somebody else whose identity had not been
disclosed.

(v) Diagnosis that Anuradha was suffering from TEN
was not done by Dr. Mukherjee. The package insert
c of Depomedrol did not indicate that it could not be
prescribed for the said disease. As Anuradha is
stated to be suffering from vasculitis and could be
treated with the said medicine, which opinion has
been supported by others including Dermatologist
D - Dr. A.K. Ghoshal, it could not be construed to be r-
incorrect and contrary to medical practice and
ethos.

(vi) Dr. Ghosal was not examined to explain the basis
upon which the patient was diagnosed to be
E
suffering from TEN.

(vii) Oral admission of Tab. Wysolone was sufficient to
indicate that the treatment of the patient was being -i-
carried out as per the prescription of Dr. Mukherjee.
F However, in any event the evidence on record was
sufficient to indicate that from 3rd April, 1998 till her
admission at AMRI on 11th May, 1998, Anuradha
was being treated after taking advice from different
doctors. There was evidence on record to indicate
G that Kunal's doctor friends contributed in her
treatment.
-+
(viii} There is a possibility of Anuradha suffering from
drug allergy as well as allergy from Chinese foods.
Application of steroid is undoubtedly an accepted
H
fllll
MALAY KUMAR GANGULY v. DR. SUKUMAR 51
MUKHERJEE AND ORS. [S.B. SINHA, J.]
treatment protocol for allergic disorders. In fact, A
t Depo-Medrol is a Glucocorticoid which has anti
inflammatory and anti-allergic action.

(ix) Allergic vasculitis is an allergic and inflammatory
condition of the blood vessels in the body and can
B
affect not only the blood vessels of the skin but also
any internal vital organs leading to death of the
,,_ patient at any point of time. Allergic vasculitis is not
a dermatological disease. The treatment suggested
by Dr. Mukherjee, therefore, could not be
considered to be an act of rash and negligence.
c
Re : DR. HALDER

The allegation of the complainant that the prescription by
'1 Dr. Halder of Prednisolone 40 mg. thrice daily had aggravated D
the disease was held not tenable on the following grounds :-

(i) He visited the patient only on 12th May, 1998 which
was supported by Dr. Balaram Prasad. He,
~
0() therefore, had no role to play in the treatment of
Anuradha which would be evident from the record E
0\)
€>() of AMRI.
c!) (ii) There is nothing on record to show that the
~ prescription of Prof. Halder was given effect to.
oJ F
(iii) Occlusive dressings were carried as a result of
which infection had been increased

(iv) He had suggested Benadryl Syrup as there were
eruptions inside the mouth and Cortisone
Kemicetin eye ointment for eye care. However, the G
steroid based Neomycin Antibiotic was prescribed
+ by the Consultant Ophthalmologist Dr. S.
" Bhattacharya on 12th May, 1998, although Prof.
Halder in his prescription advised to avoid
Neomycin and Soframycin which are common H
52 SUPREME COURT REPORTS [2009] 13 (ADDL.) S.C.R.

A causes of drug allergy. As such the treatment
suggested by Prof. Halder was not followed.

(v) There was no evidence to show that he was
incharge of the patient.
B (vi) There was no evidence to indicate that Dr.
Mukherjee ever requested Dr. Halder to see the
patient.

(vii) Despite the fact that Dr. Halder confirmed that the
c patient was suffering from TEN, records indicated
that his line of treatment was not followed and, thus,
j

the evidence to consider the deceased to be I
...
suffering from TEN is of no value.

(viii) Anuradha was thus not suffering from TEN.
D Although the papers of Breach Candy Hospital
mention that the disease was diagnosed as TEN,
but the attending physician was not a
dermatologist. Thus no one came forward to say
that Anuradha was suffering from TEN.
E
(ix) The death certificate also did not indicate that
Anuradha was suffering from TEN.

(x) Dr. Kunal Saha, husband of the deceased
Anuradha being himself not a Dermatologist; his
F
opinion is irrelevant, particularly when he is said to
have become specialist of TEN subsequently upon
studying th·e subject after her death.

(xi) Prescription of Prof. Halder indicted that he
G stopped Depo-Medrol once he started
Prednisolone 40 mg. thrice with other medicines.
He also prohibited local anesthesia, Neomycin,
Soframycin. He also gave importance on Elecrtolyte
balance, nutrition and advised for prevention of
H secondary infection.
MALAY KUMAR GANGULY v. DR. SUKUMAR 53
MUKHERJEE AND ORS. [S.B. SINHA, J.]

(xii) Prof. Halder is a renowned Dermatologist with A
numerous publications and teaching experience.
His line of treatment was in conformity with the
accepted norms particularly in view of the fact that
there is no universal protocol for the treatment of
TEN. Treatment of each patient will depend upon B
his/her condition on a particular day.

(xiii) During Anuradha's stay at AMRI there was no
indication of any complication like hypovolemia,
internal organ failure, infection of septicemia etc.
c
Re : PROF. ABANI ROY CHOWDHURY.

7. Allegation that he had also taken active part in the
treatment of Anuradha is not established from the record.
D
There is nothing on record to show that Dr. Halder while
writing the prescription had any prior discussion with Or. Abani
Roychowdhury. The endorsement that the prescription was a
joint prescription of Dr. Halder and Dr. Roychowdhury ~as
admittedly made by Dr. Kunal Saha himself
E
Although some of the doctors of AMRI had stated that they
had received the advice of Dr. Roychowdhury but the nature of
the advice had not been clarified by them.

RE: CERTIFICATE
F
8. The allegation that the certificate was issued at the
instance of Dr. Roychowdhury is not correct as the certificate
issued by Prof. Halder did not indicate that Anuradha was being
carried by a Chartered flight for better treatment. The words "for
better treatment" were not written by Prof. Halder and only in G
the course of evidence it was proved that there was an
+ interpolation in the certificate. The same was also admitted by
Dr. Bala ram Prasad and thus the certificate of Prof. Halder was
held to be forged. The forged certificate demolishes the
prosecution story that at the advice of Prof. Halder or Prof. H
•
54 SUPREME COURT REPORTS [2009] 13 (ADDL.) S.C.R.

A Roychowdhury the patient was taken to Mumbai. The
endorsement of Dr. Kunal Saha on the record of AMRI really
proved that Anuradha was shifted from the hospital at their own
risk~ The evidence on record also indicates that till the evening I
t

of 18th May, 1998, the dressing of Anuradha was not changed. ~

e Thus, by removing Anuradha, her husband Kunal Saha took
upon himself great risk of infection to her in course of transit
being aware that infection was very common at that critical
stage for the patient.
~
Kolkata doctors had no hand in shifting Anuradha from
c Kolkata to Mumbai.

The High Court also opined that the patient party did neither
follow the advice of Dr. Mukherjee nor that of Prof. Halder.

D GENERAL OBSERVATIONS BY THE HIGH COURT
T-
9. (i) As Anu~adha was treated at AMRI for six days and
at Breach Candy Hospital for 12 days, by no stretch
of imagination her death had anything to do with the
treatment at AMRI ; the cause of death being
E absent.

(ii) The contention of Dr. Kunal Saha that his wife was
6
almost dead when brought to Breach Candy
Hospital, was untrue. ~
F
(iii) Anuradha was admitted under Dr. Balaram Prasad,
who was a Consultant Physician having Post
Graduate Degree. He also claimed to be the
physician-in-charge of the treatment.

G (iv) Interference by Dr. Kuna! Saha was sufficient to
indicate that treatment of Anuradha was monitored
by him alone and nobody else. Although, he ~
claimed that Anuradha was suffering from TEN '>
which was a dermatolo9ical disease, but Anuradha
H was admitted biy him under a Plastic Surgeon, Dr.
MALAY KUMAR GANGULY v. DR. SUKUMAR 55
MUKHERJEE AND ORS. [S.B. SINHA, J.]

-~-
S. Keshwani. Even at the initial stage Dr. Kunal A
Saha gave instructions to the doctors on 17th May,
1998 rejecting the treatment suggested by doctors
attending at Breach Candy Hospital, Mumbai. Thus
the diagnosis of the disease and the follow-up
action was done under the direct supervision of Dr. B
Kunal Saha and his brother-in-law. Such was the
position at AMRI also.

(v) The opinion of three internationally-accepted
experts on TEN was not acceptable as none of
them were examined in Court. From the records of
c
Breach Candy Hospital it would itself appear that
Anuradha was being administered medicines other
than' the ones prescribed by the doctors. Cash
memos for purchase of medicines would show the
discrepancy in the medicines prescribed by the D
doctors like Bactroban Ointment, Efcorlin (one kind
of steroid) and Sofratule purchased on 12th, 13th
and 16th May, 1998 had not been prescribed by the
doctors. Relatives of the patient having not followed
the treatment protocol of the doctors under whom E
the patent is admitted; as soon as any interference
is made therewith, the doctors are absolved of their
liability.
-1-
Charge of professional negligence on a medica'I person F
is a serious one as it affects his professional status and
reputation and as such the burden of proof would be more
onerous. A doctor cannot be held negligent only because
something has gone wrong. He also cannot be held liable for
mischance or misadventure or for an error of judgment in
G
making a choice when two options are available. The m'istake
~ in diagnosis is not necessarily a negligent diagnosis.

Even under the law of tort a medical practitioner can only
be held liable in respect of an erroneous diagnosis if his error
H
56 SUPREME COURT REPORTS [2009] 13 (ADDL.) S.C.R.

A is so palpably wrong as to prove by itself that it was negligently
arrived at or it was the product of absence of reasonable skill
and care on his part regard-being held to the ordinary level of
skill in the profession. For fastening criminal liability very high
degree of such negligence is required to be proved.
B
Death is the ultimate result of all serious ailments and the
doctors are there to save the victims from such ailments.
Experience and expertise of a doctor are utilised for the -y
recovery. But it is not expected that in case of all ailments the
doctor can give guarantee of cure.
c
8.3. NATIONAL COMMISSION JUDGMENT

The Commission in its judgment noted that doctor or a
surgeon never undertakes that he would positively cure the
D patient nor does he undertake to use the highest degree of skill, y
but he only promises to use fair, reasonable and competent
degree of skill. In this regard the commission opined that if there
are several modes of treatment and a doctor adopts one of
them and conducts the same with due care and caution, (then
no negligence can be attributed ~awards him
E
It went on to note that there was no negligence on part of
Dr. Mukherjee because even Dr. A K. Ghoshal, Dermatologist,
who diagnosed the disease of Mrs. Anuradha as TEN,
+-
prescribed the same treatment.
F
Further, it observed that no records were produced by Dr.
Saha regarding the treatment given to Mrs. Anuradha from 1st
April 1998 to 7th May 1998. As there is no specific treatment
for TEN, error of judgment in the process of diagnosis does
not amount to deficiency in service, considering that the disease
G
TEN is a rare occurring in 1 case out of 1.3 per million per year.

It went on to observe that the patient was never in the
absolute care of Dr. Haldar, who had treated her only on 12t-h
of May 1998. Dr. Haldar, it noted, was, therefore, an
H unnecessary party.
MALAY KUMAR GANGULY v. DR. SUKUMAR 57
MUKHERJEE AND ORS. [S.8. SINHA, J.]

It opined that all the necessary care was taken by Dr. A
Mukherjee and Dr. Haldar. It laid special emphasis on the fact
that a complaint had been filed before the West Bengal Medical
Council, which concluded that there was no deficiency on the
part of the doctors. The Writ petition against the said decision
before the High Court was dismissed. Therefore, it was B
concluded that there was no negligence on the part of the
doctors.
-i·
C. DETERMINATION OF CERTAIN SALIENT POINTS OF
LAW AND FACTS
c
C.1. EXPERT EVIDENCE

10. Section 45 of the Indian Evidence Act speaks of expert
evidence. It reads as under:-
D
"45. Opinions of experts - When the Court has to form an
opinion upon a point of foreign law, or of science, or art,
or as to identity of hand writing or finger-impressions, the
opinions upon that point of persons specially skilled in such
foreign law, science or art, or in questions as to identity of
handwriting or finger impressions, are relevant facts. Such E
person called experts.

Illustrations

(a) The question is, whether the death of A was caused
F
by poison. The opinions of experts as to the symptoms
produced by the poison by which A is supposed to have
died, are relevant.

(b) The question is whether A, at the time of doing a certain
act, was by reason of unsoundness of mind, in capable of G
knowing the nature of the act, or that he was doing what
was either wrong or contrary to law.

The opinions of experts upon the question whether the
symptoms exhibited by A commonly show unsoundness of H
· , 58 SUPREME COURT REPORTS [2009] 13 (ADDL.) S.C.R.

A mind, and whether such unsoundness of mind usually
renders persons incapable of knowing the nature of the -f
acts which they do, or knowing that what they do is either
wrong or contrary to law, are relevant.

(c) The question is, whether a certain document was written
B
by A. Another document is produced which is proved or
admitted to have been written by A.

The opinion of experts on the question whether the two t-
documents were written by the same person or by different
C persons are relevant."

A Court is not bound by the evidence of the experts which
is to a large extent advisory in natu·re. The Court must derive
its own conclusion upon considering the opinion of the experts
0 which may be adduced by both sides, cautiously, and upon
taking into cqnsideration the authorities on the point on which
h.e deposes.'

Medical science is a difficult one. The court for the purpose
of arriving at a decision on the basis of the opinions of experts
E 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· such an
evidence could be admitted or how much weight should be +
F given thereto, lies within the domain of the court. The evidence
of an expert should, however, be interpreted lil~e any other
evidence·.

This Court in State of H.P. v. Jai Lal and others,·[ (1999)
G 7 sec 280] held as under:-

"17. Section 45 of the Evidence Act which makes opinion
of experts admissible lays down that when the court has
to form an opinion upon a point of foreign law, or of
science, or art, or as to identity of handwriting or finger
H impressions, the opinions upon that point of persons
MALAY KUMAR GANGULY v. DR. SUKUMAR 59
MUKHERJEE AND ORS. [S.S. SINHA, J.]
-
specially skilled in such foreign law, science or art, or in A
questions as to identity of handwriting, or finger
.. impressions are relevant facts. Therefore, in order to bring
__ the evidence of a witness as that of an expert it has to be
shown that he has made a special study of the subject or
acquired a special experience therein or in other words B
that he is skilled and has adequate knowledge of the
subject.
--f-

18. An expert is not a witness of fact. His evidence
is really of an advisory character. The duty of an expert
witness is to furnish the Judge with the necessary scientific
c
criteria for testing the accuracy of the conclusions so as
to enable the Judge to form his independent judgment by
the application of this criteria to the facts proved by the -
evidence of the case. The scientific opinion evidence, if
intelligible, convincing and tested becomes a factor and D
often an important factor for consideration alol'.lg with the
other evidence of the case. The credibility of such a
witness depends on the reasons stated in support of his
conclusions and the data and material furnished which form
the basis of his conclusions. E

19. The report submitted by an expert does. not go
in evidence automatically. He is to be examined as a
witness in court and has to face cross-examination. This
Court· in the case_ of Hazi Mohammad Ekramul Haq v. F
State of WB. concurred with the finding of the High Court
in not placing any reliance upon the evidence of an expert
witness on the ground that his evidence was merely an
opinion unsupported by any reasons."

ADMISSIBILITY OF EXHIBITS 4 1 5 AND 6 G
+- 11. Kunal, before us, contended that the High Court
committed a serious error in not placing reliance upon medical
opinions i.e. Exts. 4, 5 and 6 on the premise that no objection
in that behalf was raised at any point of time. H
60 SUPREME COURT REPORTS [2009) 13 (ADDL.) S.C.R.

A Kunal would argue that this Court having given him
permission to examine the expert witnesses on Video
Conferencing and he having deposed in terms thereof, I
4
Respondents could have asked for their cross-examination at
any point of time and not having done so, it does not lie in their
B mouth to contend that the opinions of the said experts who are
themselves authors on TEN and having done research on the
disease TEN, are not admissible.

FOR THE PURPOSES OF CRIMINAL PROCEEDINGS

c 12. Kuna!, however, would contend that the aforementioned
documents were exhibited without any demur whatsoever. The
respondents, furthermore, did not make any prayer to cross-
examine the said witnesses.

D It is true that ordinarily if a party to an action does not object
to a document being taken on record and the same is marked
as an exhibit, he is estopped and 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
E
been proved unless he is examined and subjected to cross-
examination in a court of law.

The document which is otherwise inadmissible cannot be +
taken in evidence only because no objection to the admissibility
F 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
G with. Exhibits 4, 5 and 6, in our opinion, are not admissible in
evidence in the criminal trial. -+
FOR PURPOSES OF PROCEEDINGS BEFORE THE
NATIONAL COMMISSION
H 13. The said exhibits, however. are admissible before the
MALAY KUMAR GANGULY v. DR. SUKUMAR 61
MUKHERJEE AND ORS. [S.8. SINHA, J.]

t consumer court. This Court in R. V.E. Venkatachala Gounder A
v. Arulmigu Viswesaraswami & V.P. Temple, (2003) 8 SCC
752, at page 763 :

" ... Ordinarily, an objection to the admissibility of evidence
should be taken when it is tendered and not subsequently.
B
The objections as to admissibility of documents in
evidence may be classified into two classes: (i) an
objection that the document which is sought to be proved
is itself inadmissible in evidence; and (ii) where the
objection does not dispute the admissibility of the
document in evidence but is directed towards the mode
c
of proof alleging the same to be irregular or insufficient. In
the first case, merely because a document has been
marked as "an exhibit", an objection as to its admissibility
is not excluded and is available to be raised even at a later
stage or even in appeal or revision. In the latter case, the D
objection should be taken when the evidence is tendered
and once the document has been admitted in evidence
and marked as an exhibit, the objection that it should not
·~ have been admitted in evidence or that the mode adopted
for proving the document is irregular cannot be allowed to E 1

be raised at any stage subsequent to the marking of the
document as an exhibit. The latter proposition is a rule of
fair play. The crucial test is whether an objection, if taken
at the appropriate point of time, would have enabled the
party tendering the evidence to cure the defect and resort F
to such mode of proof as would be regular. The omission
to object becomes fatal because by his failure the party
entitled to object allows the party tendering the evidence
to act on an assumption that the opposite party is not
serious about the mode of proof. On the other hand, a G
prompt objection does not prejudice the party tendering the
+
- evidence, for two reasons: firstly, it enables the court to
apply its mind and pronounce its decision on the question
of admissibility then and there; and secondly, in the event
of finding of the court on the mode of proof sought to be
H
62 SUPREME COURT REPORTS. [2009] 13 (ADDL.) S.C.R.

A adopted going against the party tendering the evidence,
-+
the opportunity of seeking indulgence of the court for
permitting a regular mode or method of proof and thereby
removing the objection raised by the opposite party, -is
available to the party leading the evidence. Such practice
B and procedure is fair to both the parties. Out of the two
types of objections, referred to hereinabove, in the latter
case, failure to raise a prompt and t~mely objection
amounts to waiver of the necessity for insisting on formal +--
proof of a document, the document itself which is sought
c to be proved being admissible in evidence. In the first
case, acquiescence would be no bar to raising the
objection in a superior court."

Section 22 of the Consumer Protection
I
Act, 1986
provides that Sections 12, 13 and 14 thereof and the rules y
D made thereunder for disposal of the complaints by the District
Forum, shall with such modification as may be considered
necessary by the ~Commi$sion, be applicable to the disposal
of disputes by th~ National Commission. Section 12 of the·
1986 Act provides for the rpanner in which the complaint shall ~·
E be made. Section 13 prescribes the procedure on admission
of the complaint. Sub-section (3) there9f reads:-

"(3) No proceedings complying with the procedure laid
down-in sub-sections (1) and (2) shall be called in question +
in any court on the ground that the principles of natural
F
justice have not bE!!en complied with."

Apart from the procedures laid down ln Section 12 and
13 as also the Rules made under the Act, the Commission is
not bound by any other prescribed procedure. The provisions
G of the Indian Evidence Act are not applicable. The Commission
is merely to comply with the principles of natural justice, save -+
and except the ones laid down under sub.:section (4) of Se.ction ~

13 of the 1986 Act.

H The proceedings before the National Commission are
MALAY KUMAR GANGULY v. DR. SUKUMAR 63
MUKHERJEE AND ORS. [S.B. SINHA, J.]
although judicial proceedings, but at the same time it is not a A
civil court within the meaning of the provisions of the Code of
Civil Procedure; It may have all the trappings of the Civil Court
but yet it can not be called ca civil court. [ See Bharat Bank Ltd.
v. Employees of the Bharat Bank Ltd. [1950 SCR 459] and
Nahar Industries Ltd. v. Hong Kong & Shanghai Banking B
Corporation etc. (Civil Appeal arising out of SLP (C) No.
24715 of 2008 etc. decided on 29th July, 2009)]

Mr. Gupta, learned counsel appearing on behalf of Dr.
Bairam Prasad contended that the opinions, exhibits P-4, P-5 C
and P-6 are inadmissible in evidence.

The opinions of the experts as contained in the said
documents are probably based on the hospital records and
other relevant papers. Such opinions have been rendered on
..y the basis. of their expertise. They were notarized. The said D
opinions have been appended to the complaint petition even
as documents. Respondents did not question the correctness
thereof either before the court or b~fore the Commission. They
did not examine any expert to show that said opinion are not
correct. The concerned respondents in their depositions before E
the Commission also did not challenge the correctness or
otherwise of the said opinions. Even otherwise the deficiencies
pointed out therein are explicit from the records.
-\
This Court in J.J. Merchant (Dr) v. Shrinath Chaturvedi,
[(2002) 6 sec 635], held as under :- F

"19. It is true that It is the discretion of the Commission to
examine the experts if required in an appropriate matter.
It is equally true that in cases where it is deemed fit to
examine experts,. recording of evidence before a G
Commission may consume time. Th_e Act. specifically
1

·~ empowers the Consumer f arums to foll<;:>w the procedure
... which may not require more time or delay the proceedings .
The only caution required is to follow the said procedure
strictly, Under the.Act. while trying a complaint. evidence H
64 SUPREME COURT REPORTS [2009] 13 (ADOL.) S.C.R.

A could be taken on affidavits [under Section 13(4)(iii)]. It also
empowers such Forums to issue any commission for -1
examina.tion of any witness [under Section 13(4)(v)]. It is
also to be stated that Rule 4 in Order 18 CPC is
substituted which inter alia provides that in every case, the
B examination-in-chief of a witness shall be on affidavit and
copias.thereof shall be supplied to the opposite party by
the party who calls him for evidence. It also provides that
witnesses could be examined by the court or the r
Commissioner appointed by it. As stated above, the
c Commission is also empowered to follow the said
procedure. Hence, we do not think that there is any scope
of delay in examination or cross-examination of the
witnesses. The affidavits of the experts including the
doctors can be taken as evidence. Thereafter, if cross-
examination is sought for by the other side and the ...,.
D Commission finds it proper, it can easily evolve a
procedure permitting the party who intends to cross-
examine by putting certain questions in writing and those
questions also could be replied by such experts including
doctors on affidavits. ln case where stakes are very high
E and still a party intends to cross-examine such doctors or
experts, there can be video conferences or asking
questions by arranging telephonic conference and at the
initiaL stage this cost should be borne by the person who f-
claims such video conference. Further, cross-examination
F can be taken by the Commissioner appointed by it at the
working place of such experts at a fixed time."

C.2. DIAGNOSIS AND TRAIL OF TREATMENT

OVERVIEW OF TOXIC EPIDERMAL NNECROLYSIS
G
14. Toxic Epidermal Nnecrolysis (TEN hereinafter) is also
kngwn 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
H severe and extensive variant of erythematobullous drug
MALAY KUMAR GANGULY v. DR. SUKUMAR 65
MUKHERJEE AND ORS. [S.8. SINHA, J.]
' I

eruption. In TEN, the patient is ill with high fever occasionally A
+ suffers somnolence and lassitude. Because of the extensive
area of eroded skin, large amount of body f!uid is lost with
consequent disturbances of electrolyte and fluid balance. [See
Dermatology in General Medicine (Fitz Patrick's) (5th Ed), and
Comprehensive Dermatological Drug Therapy] 8

NEGLIGENCE IN TREATMENT OF TEN

For determining the question as to whether the
respondents herein are guilty of any negligence, we may notice
'the treatment protocol. C

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 o
change throughout the world.

TEN was discovered in the year 1956 by Lyell. It leads to
immunosuppression. For treating the patients suffering from
TEN, doctors used to administer steroid. Later researches
showed that they should not be used. Such a conclusion was E
arrived at upon undertaking researches of patients suffering
from the said disease with administration of steroid as well as
non-administration of them. It was found that those patients
treated with steroids do not respond properly thereto.
Indisputably, however, some doctors still use steroids. It is F
stated that the researchers found out that use of steroids was
'more detrimental than beneficial to the TEN patients.

Admittedly, Anuradha was administered steroids. The
learned counsel for the parties have brought before us a vast G
volume of material to contend that the experts in the field as
+ also the doctors or medical practitioners who have specialized
in TEN and other dermatological diseases are sharply divided
on the administration of steroid. We for the sake of brevity refer
to them as the pro-steroid group and anti-steroid group.
H
66 SUPREME COURT REPORTS [2009] 13 (ADDL.) S.C.R.

A Medical science, therefore, has a grey area in this respect.
-+
At the outset, we may place on record the treatment
pattern prescribed by two experts, viz., Jean Edouard Revuz and
Jean Claude Roujeau who are generally accepted world over.
Ac~ording to them, the treatment pattern should be as under:
B
"The disease usually begins with non specific symptoms,
such as fever, c'bugh, sore throat, burning eyes, followed
in 1 to 3 days by skin and mucous membrane lesions. A
burning or painful rash starts systematically on the face and
c in the upper part of the tongue and rapidly extends. Most
frequently, the initial individual skin lesions form poorly
defined margins with darker purpuric centre progressively
emerging on the skin, chest and back. Less frequently, the
initial manifestations may be extensive scarlatiniform
D erythema. Symptomatic therapy is a must. IV fluids must 'f
be replaced mandatorily.

The treatment protocol includes:

* Symptomatic treatment
E
* Monitoring.

* Fluid replacement and anti-infection therapy
t-
*Nutrition
F
* Warming (30-32 degree Celsius)

*Skin care

* Eye~ and mucous membrane care"
G
They hold the view that the current evidence suggests that
~+
corticosteroids are more dangerous than useful in these
disorders as they increase the risk of death from infections,
including systemic candidiasis, a complication that had never
H been observed in many patients treated without steroids.
MALAY KUMAR GANGULY v. DR. SUKUMAR 67
MUKHERJEE AND ORS. [S.B. SINHA, J.]
After the death of Anuradha, Kunal consulted. a large A
t-· number of experts from various countries including India.

The Canadian Treatment Protocol is as under:

"IV fluid resuscitation- including internal feeding, use of air-
fluidized beds, complete avoidance of steroids, use of B
narcotics for pain, use of catheters to be avoided,
meticulous eye care daily, use of systemic antibiotic
-+ therapy for specific infections but not for prophylaxis,
topical antibiotic therapy is not used, meticulous wound
care and moist saline gauge dressing are applied once C
daily when most of the involved epidermal surface has
sloughed off, usually 3 to 4 days after the onset of TEN the
patient is given general anesthesia for washing the
wounds vigorously and applying briobrane under tension
to be stapled all over". D

Dr. George Goris, Managing Director Medical and Drug
Information of Pharmacia and Upjohn expressed that "DEPO"
dosage of more than the approved indication, that too 80 mg
twice daily, was not correct.
E
Dr. David Fine, Dermatologist from University of North
Carolina opined as under:

" ..... conventional therapy of TEN with systemic
corticosteroids involves either oral or intravenous F
preparation. I have personally never seen intramuscular
corticosteroids administration for this condition. In addition,
intramuscular corticosteroids are 11ever given on a BID
schedule (and with some preparations no more frequently
than every 4-6 weeks) because of the prolonged Depot G
effect related to administration by this particular route. In
general, intramuscular administration of systemic
+ corticosteroids is not employed in the treatment of
dermatological diseases since this routes provides very
erratic release of medication from the tissue ..... "
H
68 SUPREME COURT REPORTS [2009] 13 (ADDL.) S.C.R.

A He also remarked, as far as the treatment in the present
case is concerned: --+
II
.... manner in which the treatment was instituted in your
wife certaimy appears to be unprecedented."
B Dr. David Heimbach, Pwfessor of University of
Washington holds the view that the injection "DEPO" in twice
daily dose was not indicated in TEN protocol and the dosing
interval as advised in the prescriptions of the opposite party
+
no. 1 is not recommended for treatment of any medical
c condition, leave aside for, far less an acute medical condition
such as the one the patier;it was suffering from i.e. TEN.

Dr. Timothy Bradley, noted Physician wrote a famous
article on TEN wherein it was stated that several patients of
D TEN with 95% total BSA involvement were treated without use
of steroids and there was 100% survival rate. In his view, the. 'i-
·keystone, for survival in patients with TEN is fluid resuscitation
and nutritional support and vigilant surveillance for infection.

Gerald Pierard in his treatise on TEN stated:- '
F

E fl.'
(a) Antiseptie measures are essential to treat TEN
patients since septicaemia shock is the first cause of
mortality. So a sterile room and antiseptic bathes have to
be used. Intact blisters 1 can be left in place but when they .~
F burst, the narcotic skin must be eliminated otherwise it
becomes an excellent medium for the proliferation of
microorganisms. Repeated s.kin swabs should be done to
detect excessive coetaneo~s infection and to guide
prophylactic antibiotherapy. S stematic antibiotics should
G also be used if direct or indirect signs of septicaemia
happen: positive blood cultures, pneumonia, decrease of
the urinary flow, fever or rapid fall of the temperature,
impairing of the general condition, and decrease in tile ·-"-
white cells count with neutropenia. The search of these .)
signs implies a permanent patient's supervision with many '
H

.,'
I
MALAY KUMAR GANGULY v. DR. SUKUMAR 69
MUKHERJEE AND ORS. [S.B. SINHA, J.]

blood takes. Of course, unnecessary i.v. catheters should A
+ be avoided but in practise it is impossible to totally avoid
them. They have to be changed frequently and placed in
culture after removal.

(b) Supportive measures are also essential. Several
B
litres of fluid per day are fleeded since fluid loss is
enormous in severe cases. The absence of substitution of
these fluids leads to important internal problems. The only
way to bring such amount of fluid is by catheters. The oral
way is absolutely inadequate, more especially as digestive
tract is also often injured. Once more, as previously said,
c
catheters should be changed very regularly (maximum
every 3 days), placed if possible in areas of intact skin and
examined for bacterial contamination after removal.
-( (c) Any definite TEN drug treatment is currently not D
recognised. The case of systematic steroids is
controversial. The use of high doses of quick acting
corticosteroids for a short time could be defensible for
patients treated at the beginning of TEN without any sign
of septic contamination, to try to stop the advancement of E
the disease. Steroids are clearly harmful and ineffective
when the disease has settled. Long-acting steroids have
no place in TEN treatments. Their action is too late.
~

(d) The slough of the skin and mucous membrane is
F
painful and it is medical and ethical concern to relief pain
in TEN."

Our attention has also been drawn to the resolutions
adopted in the year 1985 at Creteil in France. We would label
it as 'Creteil Experience'. It is summarized as under: G

+ ''The absence of dermal inflammatory infiltration in TEN is
an argument against steroid therapy. Certain authors have
claimed that the extension of necrolysis is arrested by high-
dose corticosteroid therapy, but the natural history of TEN
H
70 SUPREME COURT REPORTS [2009] 13 (ADDL.) S.C.R.

A is very variable both in extent and time course. In some
cases nerolysis is complete within 24 hours. Clearly, +
steroid therapy is illogical in such patients. In other patients,
necrolysis may occur in waves. The unpredictable course ...
"
of the disease casts further doubt on uncontrolled claims
B of the efficacy of steroid therapy. The benefits of steroid
therapy, if any, would be observed only at an early stage
of a slowly evolving case of TEN. It cannot be
overemphasised that once a large area of dermis is '
~
uncovered i.e. more than 20% of the body surface area,
the supposed advantages of steroid-therapy are far
c outweighed by its drawbacks. The opinion that steroids
should not be used as a standard therapy for TEN is
shared by the majority of authors and was unanimously
agreed on at an international workshop on TEN held in
Creteil, France in October 1985. More recently, Halebian
D et al have reported high improvement of survival in patients
treated without steroids when compared with a previous
series of patients treated with high dose steroid therapy
in the same institution.

E Kunal had also consulted· several doctors and experts in
India. We would notice the opinion of some of them here but
we would deal with their admissibility at a later stage.

Dr. S.K. Bose from ~polio Hospital, Delhi, on a query made ~ It
by the appellant, opined that the treatment protocol should be
F
symptomatic and corticosteroids should be avoided. The
resume of the protocol which should be followed, according to
him, is as under:

* Discontinue all drugs implicated in TEN JAAD
G 1991

* Intravenous canali.zation for fluid replacement +
depending upon % of TBSA, Nasogastric tube
feeding, catheter if required
H
MALAY KUMAR GANGULY v. DR SUKUMAR 71
MUKHERJEE AND ORS. [S.S. SINHA, J.]
* Topical skin care A

* Monitoring serum electrolytes by culture

* Room Temperature of about 30-32 degrees
Celsius, sterile environment, air fluidized bed,
barrier nursing B

* Encourage oral fluids

* Hyperbaric oxygen, aerosols, bronchial aspiration,
physical therapy, therapies for herpes and
mycoplasma.
c
Appellant also consulted those Indian doctors who still
administered steroids. Dr. J.S. Pasricha is one of them.
According to him, use of corticosteroids in TEN was very
controversial; however, if they are used appropriately, the D
patient's life can be saved. Death due to usage of
cortlcosteroids in TEN patients, he stated, occurs only when :
•
* The reaction is not controlled properly

* E
Corticosterc51tl's are not withdrawn quickly

Attention has also been drawn to the protocol treatment
on behalf of the responden.ts. They have placed reliance on a
number of authorities to suggest a protocol of treatment of the
disease TEN in which the administration of F
glucocorticosteriods plays an integral role. Some of the
authorities suggested by them include:

* Journal of Association of Physicians of India.

* Comprehensive Dermatological Drug Therapy. G

* Dermatology by 0. Brian Falco.

* Dermatology in General Medicine (Fitz Patrick) (5th
Ed)
H
72 SUPREME COURT REPORTS [2009] 13 (ADDL.} S.C.R.

A * . Goodman and Gillman:-The Pharmacological Basis
of Therapuetics (9th) (Ed)
-+
* Harrison's Principle of Internal Medicine

* Principle's of Pharmacology.
B
* Journal of Burn Care and Rehabilitation ( A 10 year
experience with TEN)

* TEN - Medical Findings and Prognosis in 87
Patients, Jean Revuz, From the archives of
c Dermatology

* J.S. Pasricha, TEN, International Journal of
Dermatology.

D Nonetheless the following principles are integral to the "1-
treatment of TEN as suggested by the Respondents:
•
a. Treatment in burn units should be strived fdr in
•
exceptional cases but is not generally necessary.

E b. Treatment has to be indi¥jpually tailored according
to cause, type, stage and presence of
complications.

c. Systemic glucocorticoids should not be used
F routinely but are justified in the early stages of drug
induced TEN. They should be given in doses from
80 to 120 mg of methlypredisolone per day by
mouth, for several days until disease progression
has ceased. Dosages should be tapered quickly
and cautiously since no further benefit can be
G
expected thereafter and the untoward effects may
then predominate.

d. Treatment may focus on early detection and
prevention of the most fatal complication e.g.
H overwhelming infection. Cultures from skin and
MALAY KUMAR GANGULY v. DR. SUKUMAR 73
MUKHERJEE AND ORS. [S.B. SINHA, J.]
mucosal erosions, must be regularly performed. A
~
e. Blood gases and fluid, electrolytes and protein
balance must be monitored and adjusted
appropriately. Fluid replacement regimens as used
for burn patients. B
f. Supportive care is of great importance and
particular attention must be paid to a high calorie
and high - protein diet.

g. Debridgement of necrotic skin should not be c
performed before disease activity ceases.

In the criminal case, the appellant examined Dr. Salil
Kumar Bhattacharjee. For the sake of completeness it would
be necessary to place on record his opinion in the matter.
'; D
Dr. Bhattacharjee, as noticed hereinbefore, is a Professor
of Pharmacology at the Institute of Medical Science, Benaras
Hindu University. In an answer to a query, on whether he was
aware of the drug Depomedrol and its usage, he answered that
"it is usually used in chronic clinical condition like Bronchial E
Asthma and Rheumatiod Arthritis" and on being questioned,
whether Depomedrol can be used for TEN, he answered in the
negative. He stated that recommended usage is 40 to 120 mg
at intervals of at least one week and a daily dose of 80 mg can
never be used. F

Appellant also examined Dr. Udwadia. He is the
Consultant Physician in the Breach Candy Hospital. Anuradha
was a patient in the said hospital under him. He has not used
Depomedrol although his personal view was that he would have
G
used lesser doses of corticosteroid. Although he had not used
~
Depomedrol and he had no experience with the said drug, he
categorically stated that it could obviously add to steroid. In his
statement, he made it clear that "all corticosteroids are double-
edged weapons on the one hand, there can be a beneficial
effect and on the other. they can have untoward effects and the H
74 SUPREME COURT REPORTS [2009] 13 (ADDL.) S.C.R.

A effect is immunosuppression leading to infection". He also
testified that supportive therapy was necessary.

In the criminal case, even Dr. Prasad who was examined
as PW-3 stated that he prescribed Depomedrol for a day after
8 . seeing the prescription of Dr. Mukherjee. And before the
National Commission he stated that Depomedrol 80 mg twice
daily cannot be administered to any patient. Before the
Commission Dr. Mukherjee admitted that he prescribed the
+-
injection of Depomedrol and gave it to the patient at the request
C of Kunal on compassionate grounds. Dr. Halder accepted that
Depomedrol is not the correct medicine for TEN and is used
in acute medical condition.

We would, in view of the difference of opinion amongst
experts as noticed by us heretoabove in some detail, proceed
D on the assumption that steroid can be administered in the TEN
patients. However, it is clear from the opinion of the pro-steroid
experts that:

(i) The nature of steroid which should be used is
E corticbsteroid meaning thereby methyl
prednisolone.

(ii) It should be used only at the early stages for a few
days and then should be stopped or tapered to
avoid the effect of immunosuppresion as also
F sepsis.

(iii) Supportive treatment must be administered.

(iv) It should be individually tailored according to the
patients' need.
G
Supportive treatment is also advised by Dr. Pasricha and
others.

Two factors, however, must be noticed at this juncture:
H
MALAY KUMAR GANGULY v. DR. SUKUMAR 75
MUKHERJEE AND ORS. [S.S. SINHA, J.]

(i) The chemical composition of Depomedrol is A
different from other type of glucocorticosteroid
inasmuch as Depomedrol is methyl prednisolone
.... acetate and glucocorticosteroid is methyl
prednisolone sodium succinate. The evidence of
Kunal in this behalf is absolutely categorical and B
unequivocal.

(ii) All the authors are one in stating that their opinion
-t is subject to the instructions given in the package
insert of the medicine.
c
Kunal examined Dr. Anil Shinde as PW-8. He is the
Manager, Medical Service of Pharmacia India Private Limited.
Depomedorol is manufactured by Pharmacia and Upjohn,
USA The company is the distributor of the said product in India.
-1 The packet insert of Depomedrol reads as under: D

J "DOSAGE:-

The usual dosage for patients with Dermatalogic Lesions
benefitted by systemic corticoid therapy is 40-120 MG of
Methyl Prednisolone acetate administered intramuscularly E
at weekly intervals for 1-4 weeks. In acute severe
dermatitis due to poison IV relief may result within 8-12 hrs
following intramuscular administration of a single dose of
80-120 MG In chronic Contact dermatitis, repeated
injections at 5-1 O day intervals may be necessary. F
Following intramuscular administration of 80-120 MG to
asthmatic patient's relief may result within 6-48 hrs and
persist for upto 2 weeks.

Intramuscular dosage will vary with the condition being G
treated when a prolonged effect is desired: the weekly
dose may be calculated by multiplying the daily dose by 7
and given as a singular intramuscular injection. Dosage
-\ must be individualised according to the severity of the
~-
disease and the response of the patients. In general. the
H
76 SUPREME COURT REPORTS [2009] 13 (ADDL.) S.C.R.

A duration of the treatment should be kept as short as
possible. Medical surveillance is necessary. -1

PROPERTIES

After a single IM injection of 40-80 MG of Depomedrol,
8 duration of HPA Axis suppression ranges from 4-8 days.
An intra-articular injection of 40 MG in both knees given
after 4-8 hrs methyl prednisolone peaks of approximately
21.5 micrograms/ 100 ML. After intrarticular administration, +-
methyl prednisolone acetate defuses from the joint into
c systemic circulation over approximately 7 days as
demonstrated by the duration of HPA Axis suppression
and by the serum Methyl Prednisolone Values.

INDICATIONS
D )--
For Intramuscular administration, Methyl Prednisolone
acetate (Depomedrol) is not suitable for the treatment of \
acute life threatening conditions if a rapid hormonal effect
of maximum intensity is required the IV administration of
highly soluble methyl prednisolone sodium succinate
E (Solumedrol) is indicated.

PRECAUTION

Since the complications of treatment with glucocorticoids
are dependant·on the size of the dose and the duration of
F
treatment ,a risk/ benefit decision must be made in each
individual case as to dose and duration of treatment and
as to whether daily or intermittent therapy should be used.

Glucocorticoids may musk some signs of infection and
G new infections may appear during their use.
_,;...
There may be decreased resistance and inability to
localise infection when glucocorticoids are used.
t-
Do not use intrarticulary, intra bursally or intra tendinous ?>r

H
MALAY KUMAR GANGULY v. DR. SUKUMAR 77
MUKHERJEE AND ORS. [S.B. SINHA, J.] -
administration in the presence of acute infection. IM A
~
administration can only be considered after institution of

- an appropriate anti microbial treatment."

The necessity of following the instructions given in the
packet insert cannot be underestimated. Admittedly, the
B
instructions in the said packet insert had not been followed in
the instant case.
---t EFFECT OF EXCESS DOSAGE

15. There is, thus, a near unanimity that the doses of c
glucocorticosteroid and in particular Depomedrol were
excessive. From the prescription of Dr. Mukherjee, it is evident
that he not only prescribed Depomedrol injection twice daily,
but had also prescribed Wysolone which is also a steroid
-. having the composition of Methyl Predinosolone. D
From the AMRI records, it would appear that while
admitting the patient, it had categorically been noticed that 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 E
prescribed the same medicine. From Dr. Mukherjee's
prescription dated 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 injection 80 mg twice daily F
for two days.

"Depomedrol", is a "long acting" steroid recommended for
the treatment of "chronic" clinical conditions like "asthma" or
"arthritis" for its prolonged immnumosupressive action. The G
maximum recommended dose of Depomedrol is 40-120 mg
)._ at 1-4 week intervals as clearly mentioned by the drug
manufacturer, Pharmacia. Dr. J.S. Pasricha, Prof. and Ex -
head of Dermatology at the All India Institute of Medical
Sciences (Al I MS) has categorically stated, "De po .,...
·H
78 SUPREME COURT REPORTS [2009] 13 (ADDL.) S.C.R.

A preparations are used for chronic diseases and not for acute -.;
disease like TEN. Secondly, Depa preparations are not to be
used twice a day".

In his deposition, Dr. Anil Gupta deposed that, he wrote
to Pharmacia Upjohn, to know from them if the drug can be
B
used in this fashion (as was done by the Kolkata doctors) in
any clinical condition. In the reply sent by Dr. S.P.S. Bindra, it
was stated that "our package insert on Depomedrol does not
recommend the twice daily dose of injection Depomedrol 80
+--
mg in any clinical condition". Moreover he also testified to the
c cause of Anuradha's death was due to Septicemia, which
happened as a result of profound immune - suppression,
caused by overuse of steroid as prescribed by Dr. Mukherjee.
Further cause of death of Anuradha was lack of supportive
treatment and lack of care on the part of Dr. Abani Roycoudhuri
~·
D and Dr. Halder and other attending Physicians.

In his deposition Dr. Anil Shinde stated that he was
working as a Manager, Medical Service with Pharmacia India
Pvt. Ltd. and elucidated the details of Depomedrol. He stated
E that the dosage should be between 40 to 120 mg once a week
or once in two weeks. On questioned whether 80 mg of
Depomedrol can be given twice daily, the answer was "No".

In his deposition Dr. Salil Kumar Bhattacharya stated that ~·

he was a [Professor of Pharmacology. On being questioned
F whether he is aware of the Drug Depomedrol and its usage, it
was answered that "it is usually used in chronic clinical
condition like Bronchial Asthama and Rheumatoid Arthritus".
On being questioned whether Depomedrol can be used for
TEN, the answer was "No" He furthermore stated that the
G recommended usage is 40 to 120 mg. at intervals of at least 1
week and a daily dose of 80 mg can never be used. On the _),,..
question whether 'long acting' steroids can accumulate in the
body, he replied 'Yes, it can accumulate.' On being questioned,
whether it is discretion of the Physician to decide the mode of -..
H
MALAY KUMAR GANGULY v. DR. SUKUMAR 79
MUKHERJEE AND ORS. [S.B. SINHA, J.J
administration of any drug, he answered that the choice is A
~
"prerogative". However, he has to follow the pharmaco-
therapeutic norms of the drug chosen.

SUPPORTIVE THERAPY

16. No symptomatic therapy was administered. No B
emergency care was provided. Dr. Halder himself accepted
that the same was necessary. This has also been stated by
Roujeau and Revuz in their book in the following terms:

"Withdrawal of any suspect drug, avoidance of skin c
trauma, inserting a peripheral venous line, administration
of macromolecular solution, direct the patient to burn unit
or ICU."

AMRI records demonstrate how abysmal the nursing care
D
was. We understand that there was no burn unit in AMRI and
there was no burn unit 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 virtually made an ICU. Entry
Restrictions were strictly adhered to. Hygiene was ensured.
E
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 tube was given although the condition of mouth was F
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 specialist in his prescription noticed blisters G
J..... around the lips of the patient which led her to difficulty in
swallowing or eating.
No blood sampie was taken. No other routine pathological
examination was carried out. It is now beyond any dispute that
H
80 SUPREME COURT REPORTS [2009] 13 (ADDL.) S.C.R.

A 25-30% body surface area was affected (re. prescription of Dr.
Nandy, Plastic Surgeon) 1

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.
B
Supportive therapy or symptomatic therapy, admittedly,
was not administered as needle prick was prohibited. AMRI
even did not maintain its records properly. The nurses reports +-
clearly show that from 13th May onwards even the routine
c check-ups were not done.

LINE OF TREATMENT

17. Kuna I and Anuradha came on a vacation to Calcutta
on 1st April, 1998, principally to attend a wedding in the family.
D 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. He was a Professor
of Medicine in Calcutta Medical College. Anuradha and Kunal
E were advised to consult him.

Respondent No.1 examined Anuradha at her residence in
the evening of 26th April, 1998. He suggested certain
~·
pathological examinations. On that date no medicine was
F prescribed. Two weeks thereafter i.e. on or about 7th May,
1998, Respondent No.1 was informed by Kunal Saha that
Anuradha's condition had deteriorated and the skin rash and
fever were back. She was taken to his chamber at 11,
Shakespeare Sarani, Calcutta. Maculopropular rash, palpable
penpina, enlarged neck glands were found to be present. She
G
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.l.D) for 3 days to be followed by other oral steroids.
One injection was given by him.
H
MALAY KUMAR GANGULY v. DR. SUKUMAR 81
MUKHERJEE AND ORS. [S.B. SINHA, J.]
Despite the institution of Depomedrol, Anuradha's A
~
condition worsened from bad to worse in the next few days and
Dr. Kunal Saha, contacted Respondent No. 1 from ti,ne to time
for advice on telephone, who, however, insisted on continuing
Depomedrol in the same dose. Anuradha was said to have
also examined by two Consulting Dermatologists_ - Dr. AK. 8
Ghoshal and Dr. S. Ghosh, who diagnosed disease to be a
case of Vasculitis. The injection, as suggested by Respondent
No.1, however, was continued to be given.

On or about 11th May, 1998 Respondent No.1 was
informed by Kunal that his wife's condition had not been
c
improving. The skin rash was persisting alongwith the fever and
palpable neck glands whereafter he was recommended that
Anuradha be hospitalised immediately. On the same date
Anuradha was admitted in the Advanced Medicare Research
1 Institute (AMRI) (Respondent No. 4). On being admitted she D
...
~

was examined by Dr. Balaram Prasad, Respondent No.5, who
also continued with the injection of Depo-Medrol 80 mg.(2 ml.)
l/M B.D. x 1 day.

Anuradha was examined by Respondent No.1 at 2.15 p.m. E
on the same date. The prescription provided for lnj.
'Depomedrol' 80 mg IM twice daily x 2 days (then 40 mg IM
twice x days) among other things.
-~

On the basis of the said advise Anuradha was examined
F
by Consultant Dermatologist Or. A.K. Ghoshal. Anuradha was
diagnosed to be suffering from TEN. The bed ticket reads as
under:-

"Toxic Epidermal Necrolysis.
G
Separation of large sheets of skin from back and limbs,
A many small/ large bulla on limbs. Dusky red areas of
vasculitis almost all over the body. Mild conjunctivitis.
Erosive lesions on tongue and buccal mucosali.

Adv. H
82 SUPREME COURT REPORTS [2009] 13 (ADDL.) S.C.R.

A Maintain fluid and electrolyte balance. -1
Maintain maximum asepsis.

Continue same medicines.
-·
8 Soframycin cream to apply on rash areas only

Capsule Zevit - 1 Cap daily

To be reviewed later."
+-
c Respondent No.3, Prof. Dt. Abani Roy Chowdhury,
Consultant, as recommended by Respondent No.12 was also
consulted on 12th May, 1998. It is however, stated that he did
not examine the patient as he had not been contacted by the
hospital. Anuradha was also examined by Respondent No.2, ·~
l
)-
D Dr. Baidyanath Halder, a Consultant Dermatologist of fame and t
author of several Books on Skin Disorders. He also diagnosed ~

that it could be a case of TEN. He recommended treatment with
Steroids like Pedmeslan and and others and the application
of ointments. Dr Halder found that Anuradha was suffering from
E Erithima plus blisters. However, no abnormality in the eyes or
lungs was detected. He, although opined that an electrolytic
balance of the patent should be maintained and steps should
be taken to prevent any secondary infection, but did not
prescribe any medicine or indicated the steps to be taken
;
therefor.
F
Dr. Prasad referred the patient to the following Consultants.

(i) Dr. K. Nandy - a Plastic Surgeon ;

(ii) Dr. Purnima Chatterjee - a Gynecologist ;
G
(iii) Dr. S. Ahmed - an E.N.T. Surgeon ; ,.A

(iv) Dr. S. Bhattacherjee ; and

(v) Dr. N. Iqbal - General Surgeon.
H
MALAY KUMAR GANGULY v. DR. SUKUMAR 83
MUKHERJEE AND ORS. [S.B. SINHA, J.]

.. Her condition deteriorated further. On or about 17th May,
1998 Kunal was advised to shift Anuradha to Breach Candy
A

Hospital, Mumbai. For the aforementicned purpose
Respondent No.2 issued a certificate. Three words in the said
certificate, namely - "for better treatment" were said to be
added. A Charte"red Plane was arranged for taking Anuradha B
to Mumbai from Kolkata on 17th May, 2009. She was admitted
int.he said hospital at about 9.30 p.m. On her admission to the
~ Breach Candy Hospital, it was recorded inter alia :-

"Mrs. Anuradha Saha has been admitted to Breach Candy
Hospital, on· 17.5.98 at night - 9.30 PM. Her condition on
c
admission is serious. She hasbeen accompanied by her
husband Dr. Saha, who has given the history of antibiotic
injection for respiratory_ tract inject~~n - Rovamycin,
Routhromycin, Ampicillin and Ampiclox and Nemuslide
-1 followed by development of Toixc Epidermal Necrolysis. D
- She ha~ received T Prednisolone 120 mg/day for 7 days
'
and also !nj. Depomedrol Im x 3 days. She has been
hemodynamically stable till now. She is able to swallow
liquids, which has been her only nourishment over the past
few days." E

She was examinecrby Dr. Farokh E. Udwadia at the
Breach Candy Hospital in the afternoon of 18th May, 1998. His
diagnosis was as under:-
"" F
"Patient has come with a diagnosis Toxic Epidermal
Necrolysis (TEN). She has had a number of drugs at
Calcutta form antibiotics to non-steroid and inflammatory
agents. Is there any way of distinguishing this from a
Stevens & Johnson Syndrome? There is no skin left. The
mucus of the mouth, genitals and area is also severely G
;.._ affected. And have not seen the evolution of the skin
lesions to the point where there is now no skin left. So far
there is no organ evolvement in particular. No pulmonary
lesions nor any urinary lesions (organs commonly involved
as in a Steven Johnson Syndrome). In any case the basic H
84 SUPREME COURT REPORTS [2009] 13 (ADDL.) S.C.R.

A management is the same. I do feel that the dose of steroids
used in Calcutta is either excessive - 120 mg. Daily for a --+
number of days, preceded by 80 mg Depomedral
)
Injections. I would not give more than 40 mg /day Kg. body +-
weight."
B
On the same date Kunal's brother who is also a doctor
practicing in U.S.A. flew to Mumbai. He brought with him a new
antibiotic known as "Quinolone". There was some difference of .,.__
opinion between the brother-in-law of Anuradha and Dr.
Udwadia, which was noted by Dr. Udwadia. It reads as under
c -

"He was claiming of blood transfusion - insisted that his
blood or the relatives or friends blood be used - no
objection. But I have requested that this is done quietly. The
D advice was to give whole blood. My view is that 'blood' is )
being used to increase Hb., and it is unusually accepted ~

~
that to do so one gives packed cell and not whole blood. t
'·
He was also advising the use of Erthropoitin as a marrow '
stimulant. My view was that at the point of time Erythropeitin
E ~·
'
will make no difference to her condition. To increase her
Hb., from the present and Requested packed RBC
r
infusions.
~
He was keen on immediately giving a tonic supplement.
F In my experience at this point of time, Zinc SL1pplement was
not of immediate importance that if gut was working and
her external feed could be increased, she would receive
sufficient tonic." \..

G However, some differences between Kunal and his elder
brother on one hand and Dr. Udwadia persisted. He noted as
under:- ,;.._
~

"Have had great problems with the husband and brother-
in-law. It is with great difficulty that I have controlled myself.
H When presented with his arrogance and condescends -

,...
i
MALAY KUMAR GANGULY v. DR. SUKUMAR 85
MUKHERJEE AND ORS. [S.B. SINHA, J.]
merely and solely for the patient's sake. To keep the A
peace, I have compromised on the following:

To allow the use of Erythropoeitin. I reasoned that though
it cannot do much good, it does not do harm.

To allow the use of a Zinc preparation - totally unnecessary B
but not likely to lead to Zinc poisoning.

I would not allow parental alimentation through the same
central line as fluids and electrolytes as I feel that gut if
viable used at IV alimentation at this point of time may add c
to her hazards".

Her condition was better during 24th May and 25th May,
1998. She, however, breathed her last on 28th May, 1998.

NOSOCOMIAL INFECTIONS: D
18. 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 E
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 F
made infection free. Certain restrictions on the visitors had also
been taken. It is, however, not disputed that the dressing of
body surface by Dr. Kaushik Nandy started only on 13th May,
1998. What type of dressing was to be done is a matter of
dispute. We may not go into the said question. But, we must G
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 was done at AMRI in operation
theatre.
H
86 SUPREME COURT REPORTS [2009} 13 (ADDL.) S.C.R.

A It is now almost 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
Depomedrol and other high dose of glucocorticosteroid may
B first lead to immunosuppression which may in turn lead 10
septisis.

In April, 1998, when she started suffering, she 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
c 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. Such a gree~ tinge would not occur
within a day. Thus, infection was widespread. It might have been )-
D 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 to control such
bacterial infec~ion, the antibiotics were administered.

E
C.3. FINDINGS AND ANALYSIS WITH RESPECT TO SO
CALLED CLEAVAGE OF OPINION
..I
19. FINDINGS ON SO CALLED CLEAVAGE OF OPINION

F
Appellant, thus, has pla;ted on record the view points of
experts - both of the pro-steroid and anti-steroid group. Would
;-
..
it amount to cleavage of opinion so as to enable the court to
arrive at a safe conclusion that no negligence is proved or there '
1.-
was no deficiency in service? In other words, the question is
as to whether the treatment of Anuradha was in accordance
G with the medical protocol. In our opinion, the answer must be
rendered in the negative. Those who support use and ,.l
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
H
MALAY KUMAR GANGULY v. DR. SUKUMAR 87
MUKHERJEE AND ORS. [S.B. SINHA, J.]

~ have started with the onset of the disease. She had been A
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. B

On and from 7th May, 1998, she was prescribed injection
·~ Depomedrol twice a day and Wysolone. It was continued upto
13th May, 1_998, nobody even thought of stopping the injection.
Dr. Halder although stopped Depomedrol injection from 13th
May, 1998, but prescribed a high dose of steroid.
c

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
-f D
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 E
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 F
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. G
Kunal in his evidence categorically stated so in the
following terms:

"Prednisolone can be used daily at 200 mgs for multiple
sclerosis. But if instead of Prednisolone, Depomedrol H
;
88 SUPREME COURT REPORTS [2009] 13 (ADDL.) S.C.R.

A which is Methyl Prednisolone Acetate is used to this
patient he or she is likely to die. Depomedrol is not
Prednisolone. And majority of the dermatologists in the
West do not do not use any steroid whatsoever on TEN
patients." "However there is no controversy even among
B the "Pro-steroid" dermatologists that once more than 20%
of the BSA is affected no steroid should be used as it
would only enhance the chance of development of
septicemia and death."

ANALYSIS
c
The High Court as also the Commission principally
proceeded on the premise that the respondents herein are not
liable either for any act of criminal misconduct or negligence
because of cleavage of opinion. The cleavage of opinion, if
)-
D any, as we have noticed hereinbefore, is between pro-steroid
group and anti-steroid group. Accepted treatment protocol so
far as the pro-steroid group is concerned has also been noticed
by us. We have proceeded to determine the question of
negligence on the part of the respondents herein principally on
E 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 down by them.
The opinion of the anti-steroid group appears to be more
scientific and structured but the same by itself, we are
F conscious of the fact, would not lead us to the conclusion that
the respondents are guilty of gross negligence.

We may, however, notice that Mr. Fitz Patrick in his book
Dermatology in General Medicine (5th Edition), inter alia,
opined as under:-
G
"Treatment:
A
2. According to our view. agreement should be used on
following for the treatment of TEN:
H a. Treatment in burn units should be strived for in
..
MALAY KUMAR GANGULY v. DR. SUKUMAR 89
MUKHERJEE AND ORS. [S.B. SINHA, J.]

exceptional cases but is not generally necessary. A

b. Treatment has to be individually tailored according
to cause type and stage and presence and type of
complications.

c. Systemic glucocorticoids should not be used B
routinely but are justified in the early stages of drug
induced TEN. They should be given in doses from
80 to 120 mg of methlypredisolone per day by
mouth, for several days until disease progression
has ceased. Dosages should be tapered quickly c
and cautiously since no further benefit can be
expected thereafter and the untoward effects may
then predominate.

--. d. Treatment may focus on early detection and D
prevention of the most fatal complication e.g.
overwhelming infection. Cultures from skin and
mucosal erosions, must be/regularly performed.

e. Blood gases and fluid, electrolytes and protein
balance must be monitored and adjusted E
appropriately. Fluid replacement regimens as used
for burn patients.
~
f. Supportive care is of great importance and
particu"lar attention must be paid\_,to a high calorie F
and high ~ protein diet.

g. Debridgetnent df necrotic skin should not
performed before, disease activity ceases.

3. Course and ·Prognosis: The toll owing' factors G
appear to be unfavourable prognostic signs: old
age, extensive skin lesions, nuetropenia, impaired
renal function and intake of multiple drugs.
Septesemia, gastrointestinal hemorrhage,
pnuemoina and fluid and electrolyte imbalance H
90 SUPREME COURT REPORTS [2009) 13 (ADDL.) S.C.R.

A leading to renalinsufficiency are major
complications leading to death."

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'
8
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
C 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
D 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
E 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
F , 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.
G
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
H Depomedrol injection twice is not supported by any school of
MALAY KUMAR GANGULY v. DR. SUKUMAR 91
MUKHERJEE AND ORS. [S.B. SINHA, J.]
thought. The treatment line, in this case, does not flow from any A
r 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.

C.4. BURDEN OF PROOF
B
20. Kunal had not only obtained opinion of a large number
of experts, he examined some of the including Dr. Anil Shinde
P.W. 9,; Dr. Udwc;idia (P.W.10) and, Dr. Salil Kumar
Bhattacharyya, P.W. 11.
c
Respondents did not examine any expert. They, however,
relied upon some authorities to which we have referred to
heretobefore. The onus of proof, therefore, on a situation of this
nature shifted to the respondents.
-{
D
While we say so we must place on record that we are not
oblivious of the fact that the principle of res ipsa loquitur may
not be strictly applicable in a criminal case, although certain
authorities suggest application of the said principle.

In S12ring Meadows Hos~ital v. Harjol Ahluwalia 1 E
[(1998) 4 SCC 39], this Court has held as under:-

"10. Gross medical mistake will always result in a
finding of negligence. Use of wrong drug or wrong gas
during the course of anaesthetic will frequently lead to the
F
imposition of liability and in some situations even the
principle of res ipsa loquitur can be applied. Even
delegation of responsibility to another may amount to
negligence in certain circumstances. A consultant could
be negligent where he delegates the responsibility to his
junior with the knowledge that the junior was incapable of G
,>, performing of his duties properly."

However, in Rattan Singh v. State of Punjab, [(1979) 4
SCC 719}, this Court has held :-
H
':
92 SUPREME COURT REPORTS [2009] 13 (ADDL.) S.C.R.

A "3. This, however, does not excuse the accused from
his rash driving of a "blind Leviathan in berserk locomotion".
If we may adapt the words of Lord Greene, M.R. : "It
scarcely lies in the mouth of the truck driver who plays with
fire to complain of burnt fingers". Rashness and negligence
B are relative concepts. not absolute abstractions. In our
current conditions, the law under Section 304-A IPC and
under the rubric of Negligence, must have due regard to
the fatal frequency of rash driving of heavy duty vehicles
and of speeding menaces. Thus viewed, it is fair to apply
c the rule of res ipsa loquitur, of course, with care.
Conventional defences, except under compelling
evidence, must break down before the pragmatic Court
and must be given short shrift. Looked at from this angle,
we are convinced that the present case deserves no
consideration on the question of conviction."
D
In B. Nagabhushanam v. State of Kamataka, [(2008) 5
SCC 730], this Court held as under:-

"12. Reliance placed by Mr Kulkarni on Syad Akbar v.
E State of Kamataka 1 is not apposite. It proceeded on the
basis that res ipsa loquitur stricto sensu would not apply
to a criminal case as its applicability in an action for injury
by negligence is well known. In Syad Akbar this Court
opined: (SCC p. 41, para 30):
F "30. Such simplified and pragmatic application of
the notion of res ipsa loquitur, as a part of the
general mode of inferring a fact in issue from
another circumstantial fact, is subject to all the
principles, the satisfaction of which is essential
G before an accused can be convicted on the basis
of circumstantial evidence alone. These are: F:irstly,
all the circumstances, including the objective
circumstances constituting the accident, from which
the inference of guilt is to be drawn, must be firmly
H established. Secondly. those circumstances must
MALAY KUMAR GANGULY v. DR. SUKUMAR 93
MUKHERJEE AND ORS. [S.B. SINHA, J.)
be of a determinative tendency pointing unerringly A
towards the guilt of the accused. Thirdly, the
circumstances should make a chain so complete
that they cannot reasonably raise any other
hypothesis save that of the accused's guilt. That is
to say, they should be incompatible with his B
innocence, and inferentially exclude all reasonable
doubt about his guilt."

There cannot, however, be any doubt whatsoever that in
the civil appeal the said principle is applicable. It has clearly C
been held by this Court that the onus of proof would shift on
the respondents.

In Nizam Institute of Medical Sciences v. Prasanth S.
Dhananka and others, [2009 (7) SCALE 407) this Court. held
as under:- D

"32. We are also cognizant of the fact that in a case
involving medical negligence, once the initial burden has
been discharged by the complainant by making out a case
of negligence on the part of the hospital or the doctor E
concerned, the onus then shifts on to the hospital or to the
attending doctors and it is for the hospital to satisfy the
Court that there was no lack of care or diligence. In Savita
Garg (Smt.) v. Director, National Heart Institute it has
been observed as under:
F
Once an allegation is made that the patient was
admitted in a particular hospital and evidence is
produced to satisfy that h.e died because of lack of
proper care and neglig~nce, then the burden lies
on the hospital to justify that there was no G
negligence on the part of the treating doctor or
hospital. Therefore, in any case, the hospital is in
a better position to disclose what care was taken
or what medicine was administered to the patient.
It is the duty of the hospital to satisfy that there was H
94 SUPREME COURT REPORTS [2009] 13 (ADDL.) S.C.R.

A no lack of care or diligence. The hospitals are
~
institutions, people expect better and efficient
service, if the hospital fails to discharge their duties
through their doctors, being employed on job basis
or employed on contract basis, it is the hospital
B which has to justify and not impleading a particular
- doctor will not absolve the hospital of its
responsibilities."
~
C.5. CONTRIBUTORY NEGLIGENCE

c 21. The High Court as also the Commission opined 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
)-
D submitted that it was the infection 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 stating:-

F "Q.38 (Ld. complainant counsel sows the witness Exbt. 8).
What do you understand by this line "Fusys 200 mg. I
weekly once"; - 3rd line from the end?

Ans. Regarding this question I like to say all instructions
G for mediction in Exbt. 8 were carried out by Dr. Kunal Saha
but not by my nurses. If I can not l:!nderstand this instruction
_.....
I would have made queries and doctor would clear it. But
I had no such chance to make queries regarding this."

It is to be noted here that Nursing Superintendent being a
H professional cannot take this plea. Moreover, the same is not

"'
MALAY KUMAR GANGULY v. DR. SUKUMAR 95
MUKHERJEE AND ORS. [S.B. SINHA, J.]
borne out of records at AMRI. Even if we assume this statement A
~
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 ab1dicating one's
responsibility especially when an interference.could also have
been in the nature of suggestion. B

Same comments were said to have been made by Dr.
Halder while making his statement under Section 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
c
National Commission are not backed by any evidence on
record. Even otherwise, 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. D

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 E
the hospital.

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 F
explanation is that he did not follow the medical protocol in the
matter of dressing. This may or may not be correct.

We may notice that whenever any interference in contrast
to the AMRI was attempted to be made by the patient party at G
Breach Candy Hospital, it had scrupulously been placed on
J,
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 H
96 SUPREME COURT REPORTS [2009] 13 (ADDL.) S.C.R.

A 'both of them'. ~

It is accepted that the elder brother of Kunal came to
Mumbai on 17th May, 1998 itself. He brought with him a new
antibiont;. named "Quinolone" which was not available in India.
'.
He persuaded Dr. Udwadia to administer the said injection.
B
This discu~sion between them has also been recorded. Some
adverse remarks have also been recorded with regard to the
conduct of Dr. Saha. Dr. Udwadia has 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
c sake.

Though some of the suggestions of Dr. Saha did not seem
particularly useful to Dr. Udwadia, but those measures which
were not harmful to the patient were administered. We, however,
~
D may also notice that 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.

We may also place on record that despite such elaborate '
and careful treatment meted out to Anuradha, her condition had
E
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.

F 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 ~aid
antibiotics were necessary. Kunal, however, submitted that the
said antibiotics were prescribed by the doctors at AMRI and
G he did not write any prescription. We would, however; assume
that the said antibiotics had been administered by Kunal on his
~
own, but it now stands admitted that administration of such
antibiotics was necessary.

To conclude, it will be pertinent to note that even if we
H
MALAY KUMAR GANGULY v. DR. SUKUMAR 97
MUKHERJEE AND ORS. [S.S. SINHA, J.]

agree that there was interference by Kunal Saha during the A
t treatment, it in no way diminishes the primary responsibility and
default in duty on part of the defendants. In si.;ite 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 B
extent, contributory negligence is not pertinent. It may, however,
have some role to play for the purpose of damages .
...._
C.6. NON-JOINDER OF NECESSARY PARTIES

16. Respondents contend that Dr. Kunal had been c
selective in prosecuting three principal doctors on the criminal
side who allegedly treated Anuradha but some more before the
Commission. Contending that no reason has been assigned
as to why case against Dr. AK. Ghoshal as also Breach Candy
-1 D
Hospital and doctors treating Anuradha at Bombay from 17th
May, 1998 till 28th May, 1998 had been given up, the learned
counsel urged that these appeals should be dismissed on that
ground alone.

We are afraid that the aforementioned submission cannot
E
be accepted in view of the decision of this Court in Smt. Savita
Garg (supra), wherein it has been held:

. " So far as the law with regard to the non-joinder of
necessary party under Code of Civil Procedure, Order 1
R.ule 9 and Order 1 Rule 10 of the CPC there also ev,en F
no suit shall fail because of mis-joinder or non-joinder of
parties. It can proceed against the persons who are parties
before the Court. Even the Court has the power under
Order 1 Rule 10(4) to give direction to implead a person
who is a necessary party. Therefore, even if after the G
direction given by the Commission the concerned doctor
> and the nursing staff who were looking after the deceased
A.K. Garg have not been impleaded as opposite parties
it can not result in dismissal of the original petition as a
whole." H
98 SUPREME COURT REPORTS [2009] 13 (ADOL.) SiC.R.

A An argument has also been advanced that Anutadha was
i
treated by as many as 16 doctors and, thus, there was no
reason as to why on_ly the respondents should have been
proceeded against. Proceeding should be initiated both under
the criminal law as also the tort law only against those who are
B specifically found to be guilty of criminal misconduct or medical
negligence or deficiency in ser11ice and not against all. Apart
from making a general submission, it has not been pointed out
as to what difference would have been made if others were
also impleaded as parties. The medical records were before
c 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 pages. No party had
relied on any evidence other than those records as also the oral
evidence and documentary evidence brought on record by
them. Respondents have also not pointed out as to how )--
D
treatment by any other doctor has contributed in any manner
to the death of Anuradha.

Submissions have also been made at the bar that Kuna!
issued notices to a large number of persons but withdrew the
E cases against most of them. It was placed before us that in the
first notice there were as many as 26 addresses and in the
complaint filed before the National Commission. there were .1~
addresses. Withdrawal of cases against some of them. in our ,,_
opinion, is not of much significance. The Directors of AMRI w~re
F impJeaded as parties. Cases against them had also been
withdrawn and, in our opinion, rightly so as most of them were
liable in their personal capacity. Dr. Kunal says that the
proceeding against Breach Candy Hospital and doctors
treating Anuradha had been withdrawn as the principal
G 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, it was brought on
record that no nursing home in Calcutta has a separate burn """
ward. Absence of burn ward by itself. thus. might not be a
H contributory factor although existence thereof-was highly
MALAY KUMAR GANGULY v. DR. SUKUMAR 99
MUKHERJEE AND ORS. [S.B. SINHA, J.]

t- desirable keeping in view the treatment protocol. A
We must bear in mind that negligence is attr~buted when
existing facilities ar~ 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
B
amenities that are fundamental for the patients, it would certainly
amount to medical malpractice. As it has been held in Smt.
Savita Garg (supra), 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
c
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 doctors1did not charge any professional
~ D
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 consJdered to be a relevant factor for dismissal of these E
appeals.

D. CIVIL LIABILITY UNDER TORT LAW AS ALSO UNDER
~I
CONSUMER PROTECTION ACT

23. In this case, we are concerned with the extent of F
negligence on the part of the doctors, if any, for the purpose of
attracting rigours of Section 304A of the Indian Penal Code as
also for attracting the liability to pay compensation to the
appellant in terms of the provisions of the Consumer Protection
Act, 1986. yve intend to deal with these questions separately. G
>- 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 thresholds under the Tort Law
H
100 SUPREME COURT REPORTS [2009] 13 (ADDL.) S..C.R.

A 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 under section 304 - A.
B
Bearing this in mind, we further elaborate on both the
questions separately.
~·
0.1. LAW OF NEGLIGENCE UNDER TORT LAW

c Negligence is the breach of a duty caused by the omission
to do something which a reasonable man, guided by those
considerations which ordinarily regulate the conduct of human
affairs would do, or doing something which a prudent and
reasonable man would not do. [See Law of Torts, Ratanlal & '
I
I

D Dhirajlal Twenty-fourth Edition 2002, at p.441-442] ~

Negligence means "either subjectively a careless state of
mind, or objectively careless conduct. It is not an absolute term
but is a relative one; is rather a comparative term. In
determining whether negligence exist in a particular case, all
E the attending and surrounding facts and circumstance have to
be taken into account." [See Municipal Corpn. Of Greater
Bombay v. Laxman Iyer, (2003) 8 SCC 731, para 6;
Adavanced Law Lexicon, P Ramanatha Aiyar, 3rd ed. 2005,
p. 3161]
F
Negligence is strictly nonfeasance and not malfeasance.
It is the omission to do what the law 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
G
or ordinance or i~ contrary to the dictates of ordinary prudence.
-l
In Bo/am v. Friem Hospital Management Committee,
[(1957) 2 All ER 118], the law was stated thus:

H "Where you get a situation which involves the use of some
MALAY KUMAR GANGULY v. DR. SUKUMAR 101
MUKHERJEE AND ORS. [S.S. SINHA, J.]
special skill or competence, then the test.. ... is the standard A
t-
of ordinary skilled man exercising and professing to have
that special skill. A man need not possess the highest
expert skill; it is well-established law that it is sufficient if
he exercises the ordinary skill of an ordinary competent
man exercising that particular art .... B
[A doctor] is not guilty of negligence if he has acted
in accordance with a practice accepted as proper by a
responsible body of medical men skilled in that particular
art. ... Putting it the other way round, a [doctor]- is not
negligent, if he [has acted] in accordance with such a c
practice, merely because there is a body of opinion which
[takes] a contrary view."

It has been laid down that an ordinary skilled professional
i standard of care for determining the liability of medical D
professional should be followed. (See Maynard v. West
Midland Regional Health, Authority, [(1985) 1 All ER 635
(HL)])

Recently in Martin F.D' Souza v. Mohd. lshfaq, [ (2009) 3
E
SCC 1], this Court laid down the precautions which doctors/
hospitals etc. should have taken, in the following terms:-

"(a) Current practices, infrastructure, paramedical and
other staff, hygiene and sterility should be observed
"""
strictly .... F

(b) No prescription should ordinarily be given without actual
examination. The tendency to give prescription over the
telephone, except in an acute .emergency, should be
avoided. G
(c) A doctor should not merely go by the version of the
patient regarding his symptoms, but should also make his
own analysis including tests and investigations where
necessary.
H
102 SUPREME COURT REPORTS [2009) 13 (ADDL.) S.C.R.

A (d) A doctor should not experiment unless necessary and
even then he should ordinarily get a written consent from
the patient.

(e) An expert should be consulted in case of any doubt. ... "
B In fact, the Bolam case in common laws jurisdictions is
weakened in recent years by reasons of series of decisions in
Australia [Rogers v. Whitaker: (1992) 109 Aus LR 625 and
Roenbreg v. Percival 2001 HCA 18]; Canada [Rib/ v. Hughes:
(1980) 114 DLR 3d 1] and the United States and even in the
C United Kingdom.

We may refer to Bolitho v. City and Hackney Health
Authority, [(1997) 4 All ER 771 (HL)], where the Court got away
from yet another aspect of Bolam case. It was observed :-
D "The court is not bound to hold that a defendant doctor
escapes liability for negligent treatment or diagnosis just
because ~e leads evidence from a number of medical
experts who are genuinely of opinion that the defendant's
treatment or diagnosis accorded with sound medical
E practice. The use of these adjectives - responsible,
reasonable and respectable - all show that the court has
to be satisfied that the exponents of the body of opinion
relied upon can demonstrate that such opinion has a
logical basis. In particular in cases involving, as they so
F often do, the weighing. of risks against benefits, the judge
before accepting a body of opinion as being responsible,
reasonable and respectable, will need to be satisfied that,
in forming their views, the experts have directed their
minds to the question of comparative risks and benefits
G and have reached a defensible conclusion on the matter."

In this regard it would be imperative to notice the views ...\
rendered in Jacob Mathew v. State of Punjab, [(2005) 6 SCC
1, where the court came to the conclusions:

H (i) Mere deviation from normal professional practice
MALAY KUMAR GANGULY v. DR. SUKUMAR 103
MUKHERJEE AND ORS. [S.B. SINHA, J.]

-~ is not necessarily evidence of negligence. A

(ii) Mere accident is not evidence of negligence

(iii) An error of judgment on the part of a professional
is not negligence per se.
B
(iv) Simply because a patient has not favourably
responded to a treatment given by a physician or
-~
a surgery has failed, the doctor cannot be held
liable per se by applying the doctrine of res ipsa
loquitor. c
RIGHT OF THE PATIENT TO BE INFORMED

24. 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 D
some medicine has some adverse affect or some reaction is
anticipated, he should be informed thereabout. It was not done
in the instant case.

In Sidaway v. Board of Governors of BethleJ!I Royal E
Hospital and the Maudsley Hospital, [ [1985] All ER 643 ], the
House of Lords, inter alia held as under :-

"The decision what degree of disclosure of risks is
best calculated to assist a particular patient to make a
rational choice as to whether or not to undergo a particular F
treatment must primarily be a matter of clinical judgment.

An issue whether non-disclosure of a particular risk
or cluster of risks in a particular case should be
condemned as a breach of the doctor's duty of care is an G
issue to be decided primarily on the basis of expert
,.+-
medical evidence. In the event of a conflict of evidence the
judge will have to decide whether a responsible body of
medical opinion would have approved of non-disclosure
in the case before him. H
104 SUPREME COURT REPORTS [2009] 13 (ADDL.) S.C.R.

A A judge might in certain circumstances come to the ..,..
conclusion that disclosure of a particular risk was so
obviously necessary to an informed choice on the part of
the patient that no reasonably prudent medical man would
fail to make it, even in a case where no expert witness in
B the relevant medical field condemned the non-disclosure
as being in conflict with accepted and responsible medical
practice."
}
The law on medical negligence also has to keep up with
the advances in the medical science as to treatment as also
c diagnostics. Doctors increasingly must engage with patients
during treatments espeeially when the line of treatment is a
contested one and hazards are involved. Standard of care in
such cases will involve the duty to disclose to patients about
the risks of serious side effects or about alternative treatments.
D In the times to come, litigation may be based on the theory of
lack of informed consent. A significant number of jurisdictions,
however, determine the existence and scope of the doctor's
duty to inform based on the information a reasonable patient
would find material in deciding whether or not to undergo the
E proposed therapy. [See Canterbury v. Spence, 464 F.2d 772
(D.C. Cir. 1972), cert. denied, 409 U.S. 1064 (19r72); see also
Cobbs v. Grant, 8 Cal. 3d 229, 104 C.al. Rptr. 505, 502 P.2d
1 (1972); Hamiltorn v. Hardy, 37 Colo. App. 375, 549 P.2d
>-
1099 (1976)]. In this respect, the only reasonable guarantee of
F a patient's right of bodily integrity and self-determination is for
courts to 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.
G
0.2. TRANSPORTATION
...._
25. So far as transportation of Anuradha from Kolkata to
Mumbai is concerned, we must place on record that a
certificate in that behalf was given by Dr. Baidyanath Halder
H correctness whereof, except for the words "for better treatment"
MALAY KUMAR GANGULY v. DR. SUKUMAR 105
MUKHERJEE AND ORS. [S.B. SINHA, J.]
., is not in dispute. Dr. Halder does not contend that the contents A
of the same are wrong. He merely says that the same was
issued at the 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 and/or any other B
doctor. Why he had taken the burden of issuing such a
certificate is not explained.

We are of the opinion that a conclusion as to whether the
words "for better treatment" have been inserted in the said
certificate or not or the same was done at the instance of Kunal,
c
is wholly unnecessary for our purpose. The only question which
arises is as to whether there was any risk of Anuradha
developing infection due to exposure during transportation. She
was flown to Mumbai by an exclusive chartered flight (air
i D,
ambulance) of East-West Rescue of Delhi. Kunal had to pay
about $ 2000 for the said purpose. Respondents did not
suggest that the service provided by the said airlines was of
inferior character or 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 E
hospital. Her transportation to Mumbai was necessary and was
not an act borne out of desperation alone.

We may notice that even a couple of Kunal's friends, who
were doctors, came to Mumbai by Jet Airways flight. F
It appears that East West Rescue of Delhi, which provided
air ambulance, must have taken all necessary precautions.
Although lot of literature on the subject relating to the services
of the said airlines showing that it is considered to be one of
best in the world is available, we refrain from dealing with the G
~ same, as it is not necessary.

Dr. Udwadia made a comment that transportation of
Anuradha from Kolkata to Mumbai may have exposed her to
infection. He, however, added a proviso thereto - unless better H
106 SUPREME COURT REPORTS [200'9] 13 (ADDL.) S.C.R.

A care was taken. There was no reason as to why t~e proper care
was not taken, particularly seeing her condition. There is no
...
evidence on record leading to an opposite c,onclusion. Dr.
Nandy, stated dressing was necessary before transportation.
He must have done so keeping in view the necessity of
B 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 same, observed that the patient's condition was
worse than he anticipated.
c D.3. LEGITIMATE EXPECTATION
26. Kunal approached the best doctors available. He
admitted his wife at AMRI on the recommendation of Dr.
Mukherjee, evidently, expecting the best possible treatment
·~
D from the renowned doctors and a renowned 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
E Hospital on 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
F 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.

The standard of duty to care in medical services may also
G be inferred after factoring in the position and stature of the
doctors concerned as also the hospital; the premium stature
of services available to the patient certainly raises a legitimate
expectation. We are not oblivious that the source of the said
doctrine is in administrative law. A little expansion of the said
H doctrine having regard to an implied nature of service which is
MALAY KUMAR GANGULY v. DR. SUKUMAR 107
MUKHERJEE AND ORS. [S.B .. SINHA, J.]
to be rendered, in our opinion, would not be quite out of place. A

AMRI makes a representation that it is one of the best
hospitals in Calcutta and provides very good medical care to
its patients. In fact the learned Senior Counsel appearing on
behalf of the respondents, when confronted with the question
8
in regard to maintenance of the nurses register, urged that it is
not expected that in AMRI regular daily medical check-up would
not have been conducted. We thought so, but the records
suggest otherwise. The deficiency in service emanates
therefrom. Even in the matter of determining the deficiency in
medical service, it is now well-settled that if representation is C
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.

We may notice some of the decisions in this behalf. D

In Smt. Savita Garg v. The Director, National Heart
Institute [2004 (8) SCALE 694 : (2004) 8 SCC 56], this Court
opined:

"It is the common experience that when a patient goes to E
a private clinic, he goes by the reputation of the clinic and
with the hope that proper care will be taken by the Hospital
authorities. It is not possible for the patient to know that
which doctor will treat him. When a patient is admitted to
a private clinic/ hospital it is hospital/ clinic which engages F
the doctors for treatment. ... They charge fee for the
services rendered by them and they are supposed to
bestow the best care."

0.4. INDIVIDUAL LIABILITY OF THE DOCTORS
G
~- 27. There cannot be, however, by any doubt or dispute that
for establishing medical negligence or deficiency in service, the
courts would determine the following:

(i) No guarantee 1s given by any doctor or surgeon that H
108 SUPREME COURT REPORTS [200'9]13 (ADDL.) S.C.R.

A the patient would be cured. ...
(ii) The doctor, however, must undertake a fair,
reasonable and competent degree of skill, which
may not be the highest skill.

B (iii) Adoption of one of the modes of treatment, if there
are many, and treating the patient with due care and
caution would not constitute any negligence. ,..
(iv) Failure to act in accordance with the standard,
c reasonable, competent medical means at the time
would not constitute a negligence. However, a
medical practitioner must exercise the reasonable
degree of care and skill and knowledge which he
possesses. Failure to use due skill in diagnosis with
the result that wrong treatment is given would be
D
negligence.

(v) In a complicated case, the court would be slow in
contributing negligence on the part of the doctor, if
he is performing his duties to be best of hjs ability.
E
Bearing in mind the aforementioned principles, the
individual liability of the doctors and hospital must be judged.

We enumerate heretobelow the duty of care which OJ.Jght
to have been taken and the deficiency whereof is being
F complained of in the criminal case and the civil case,
respectively, so far as respondent Nos. 1 to 3 are concerned.

When Dr. Muk~erjee examined Anuradha, she had rashes
all over her body and this being the case of dermatology, he
G 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 that matter any patient suffering from any other
H
MALAY KUMAR GANGULY v. DR. SUKUMAR 109
.. MUKHERJEE AND ORS. [S.B. SINHA, J.]

t bypass of skin disease and the maximum recommended usage A
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 is a
wrongful act on his part.
I B
According to general practice, long acting steroids are not
advisable in any clinical condition, as noticed hereinbefore.
~ However, instead of prescribing to a quick acting steroid, the
prescription of a long acting 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
c
by the Experts who were cross examined and the authorities
that have been submitted that the usage of 80-120 mg is not
permissible in TEN.
1
Furthermore, after prescribing a steroid, the effect of D
immunosuppression caused due to it, ought to have been
foreseen. The effect of immunosuppression caused due to the
use of steroids has affected the immunity of the patient and Dr.
Mukherjee has failed to take note of the said consequences.
E
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
F
'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.
G
k Life saving 'supportive therapy' including IV fluids/
.. electrolyte replacement, dressing of skin wounds and close
monitoring of infection is mandatory for proper care of TEN
patients. Skin (wound) swap and blood tests also ought to be
H
110 SUPREME COURT REPORTS [2009] 13 (ADDL.) S.C.R.

A performed regularly to detect the degree of infection. Apart from
using the steroids, ~ggressive supportive therapy that is
considered to be rudimentary for TEN patients was not provided
by Dr. Halder. Further 'vital-signs' of a patient such as
temperature, pulse, intake-output and blood pressure were not
B 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 monitored regularly is certainly an act of negligence.

Occlusive dressing were carried as a result of which the
C infection had been increased. Dr Halder's prescription was
against the Canadian treatment protocol reference to which we
have already made herein before.

It is the duty of the doctors to prevent further spreading of
D 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.

After coming to know that the patient is suffering from TEN,
E 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. >
F As regards, individual liability of the respondent Nos 4, 5
and 6 is concerned, we may notice the same hereunder.

As regards AMRI, it may be noticed:

(i) Vital parameters of Anuradha were not examined
G between 11.05.1998 to 16.05.1998 (Body
Temperature, Respiration Rate, pulse, BP and ·~.

urine input and output)

(ii) IV. Fuid not administered. (l.V. fluid administration
H is absolutely necessary in the first 48 hours of
MALAY KUMAR GANGULY v. DR. SUKUMAR 111
MUKHERJEE AND ORS. (S.B. SINHA. J.]
treating TEN) A
--t
As regards, Dr. Balaram Prasad, Res~ondent No. 5, it
may be noticed:

(i) Most Doctors refrain from using steroids at the later
stage of the disease - due to the fear of Sepsis, 8
yet he added more steroids in the form of quick -
acting "Prednisolone" at 40g three times a day.
4
(ii) He stood as second fiddle to the treatment and
failed to apply his own mind. c
(iii) No doctor has the right to use the drug beyond the
maximum recommended dose.

So far as the judgment of the Commission is concerned,
" it was clearly wrong in opining that there was no negligence on D
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 E
otherwise difference of opinion, that he cannot be held to be
guilty of negligence.

D.5. CONCLUSION

28. We remit the case back to the Commissioll only for F
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.
G
In Oriental Insurance Company Limited v. Jashuben and
Others [(2008) 4 SCC 162], this Court held:
-"
* "28. We, therefore, are of the opinion that what would have
been the income of the deceased on the date of retirement
was not a relevant factor in the'light of peculiar facts of this H
112 SUPREME COURT REPORTS [2009] 13 (ADDL.) S.C.R.

A case and, thus, the approach of the Tribunal and the High
Court must be held to be incorrect. It is impermissible in
+
law to take into consideration the effect of revision in scale
of pay w.e.f. 1.1.1997 or what would have been the scale ..,
of pay in 2002.
B
29. The loss of dependency, in our opinion, should be
calculated on the basis as if the basic pay of the deceased
been Rs. 3295/- X 2 = Rs. 6,590/-, thereto should be _,._
added 18.5% dearness allowance which comes to Rs.
1219/-, child education allowance for two children @ Rs.
c =
240/- X 2 Rs. 480 and child bus fair Rs. 160 X 2 Rs. =
320/- should have been added which comes to Rs. 8,609/
-
30. From the aforementioned figure 1/3rd should be
D deducted. After deduction, the amount of income comes
to Rs. 5,738/- per month [Rs. 8609/- - Rs. 2871/-] and the
amount of compensation should be determined by
adopting the multiplier of 13, which comes to Rs. 8,95, 128/

E
31. In the present case, the High Court itself has applied
the multiplier of 13. We are of the opinion that no
interference therewith is warranted. We furthermore do not
intend to interfere with the rate of interest in the facts and
circumstance of the case."
F
Indisputably, grant of compensation involving an accident
is within the realm of law of torts. It is based on the principle of
restitution in integrum. The said principle provides that a
person entitled to damages should, as nearly as possible, get
G that sum of money which would put him in the same position
as he would have been if he had not sustained the wrong. [See
~
Livingstone v. Rawyards Coal Co. [ (1880) 5 AC 25].
"
When a death occurs the loss accruing to the dependent
must be taken into account; the balance of loss and gain to him
H
MALAY KUMAR GANGULY v. DR. SUKUMAR 113
MUKHERJEE AND ORS. [S.B. SINHA, J.]

-;- must be ascertained ; the position of each dependent in each A
case may have to be considered separately [ See Davis v.
Powell Duffrya Associated Collieries Ltd. [ (1942) AC 601 ].
The said principle has been applied by this Court in Gobald
Motor Service Ltd., Allahabad v. R.M.K. Ve/uswami, [AIR 1962
SC 1 ]. B
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
c
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
i
emotional aspect of it cannot be. It depends upon her D
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 E
including the loss of child in some of its decisions. [See Lata
Wadhwa v. State of Bihar (2001) 8 SCC 197 and R.K. Malik
and Anr. v. Kiran Pal & Ors. 2009 (8) SCALE 451)

In R.D. Hattangadi v. Pest Control (India) (P) Ltd. [AIR
1995 SC 755), this Court observed: F

"Broadly speaking while fixing an amount of compensation
payable to a victim of an accident, the damages have to
be assessed separately as pecuniary damages and
special damages. Pecuniary damages are those which the G
victim has actually incurred and which are capable of being
..\-
.
calculated in terms of money; whereas non-pecuniary
damages are those which are incapable of being
assessed by arithmetical calculations. In order to
H
114 SUPREME COURT REPORTS [2009] 13 (ADDL.) S.C.R.

A appreciate two concepts pecuniary damages may include ~
expenses incurred by the claimant: (i) medical attendance;
(ii) loss of earning of profit up to the date of trial; (iii) other
material loss. So far non-pecuniary damages are
concerned, they may include (i) damages for mental and
B physical shock, pain and suffering, already suffered or likely
to be suffered in future; (ii) damages to compensate for
the loss of amenities of life which may include a variety of __,_
matters i.e. on account of injury the claimant may not be
abl.e to walk, run or sit; (iii) damages for the loss of
expectation of life, i.e., on account of injury the normal
c
longevity of the person concerned is shortened; (iv)
inconvenience, hardship, discomfort, disappointment,
frustration and mental stress in life."

The Commission must, therefore, while arriving at the ...
D adequate compensation bear in mind all these relevant facts
and circumstances.

E. ASSESSING CRIMINAL CULPABILITY

UNDER SECTION 304-A
E
E.1. CRIMINAL NEGLIGENCE UNDER SECTION 304-A

29. Criminal Medical Negligence is governed by Section f
304A of the Indian Penal Code. Section 304-A of the Indian
F Penal Code reads as under:-

"304-A. Causing death by negligence.- Whoever causes
the death of any person by doing any rash or negligent act
not amounting to culpable homicide, shall be punished with
imprisonment of either description for a term which may
G extend to two years, or with fine, or with both."
_,..
Essential ingredients of Section 304-A are as under:-

(i) Death of a person
H
MALAY KUMAR GANGULY v. DR. SUKUMAR 115
MUKHERJEE AND ORS. [S.B. SINHA, J.]
(ii) Death was caused by accused during any rash or A
negligence act.

(iii) Act does not amount to culpable homicide.

And to prove negligence under Criminal Law, the
prosecution must prove: B

(i) The existence of duty.

(ii) A breach of the duty causing death.

(iii) The breach of the duty must be characterized as C
gross negligence.

[See R. v. Prentice and R v. Adomako: [1993) 4 All ER
935)
D
The question in the instant case would be whether the
Respondents are guilty of criminal negligence. Criminal
negligence is the failure to exercise duty with reasonable and
proper care and employing precautions guarding against injury
to the public generally or to any individual in particular.
E
It is, however, well settled that so far as the negligence
alleged to have been caused by medical practitioner is
concerned, to constitute negligence, simple lack of care or an
error of judgment is not sufficient. Negligence must be of a
gross or a very high degree to amount to Criminal Negligence. F

Medical science is a complex science. Before an
inference of medical negligence is drawn, the court must hold
not only existence of negligence but also omission or
commission on his part upon going into the depth of the working G
of the professional as also the nature of the job. The cause of
* death should be direct or proximate. A distinction must be
borne in mind between civil action and the criminal action.

The jurisprudential concept of negligence differs in civil and
H
116 SUPREME COURT REPORTS [2009] 13 (ADDL.) S.C.R.

A 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
B 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
c medical professional in his ordinary senses and prudence
would have done or failed to do.

SHIFTING OF BLAME

30. It is also of some great significance that both in the
D criminal as also the civil cases, the concerned doctors took ~
recourse to the blame game. Some of them tried to shirk their
individual responsibilities. We may in this behalf notice the
following:

(i) In response to the notice of Dr. Kunal, Dr. Mukherjee
E
says that Depomedrol had not been administered at all. When
confronted with his prescription, he suggested that the reply was
not prepared on his instructions, but on the instruction of AMRI.
;.
(ii) Dr. Mukherjee, thus, sought to disown his prescription
F at the first instance. So far as his prescription dated 11th May,
1998 is concerned, according to him, because he left Calcutta
for attending an international conference, the prescription
issued by him became non-operative and, thus, he sought to
shift the blame on Dr. Halder.
G
(iii) Dr. Mukherjee and Dr. Halder have shifted the blame
to Dr. Prasad and other doctors. Whereas Dr. Prasad counter- -j.

charged the senior doctors including the respondent No. 2
stating:
H
MALAY KUMAR GANGULY v. DR. SUKUMAR 117
MUKHERJEE AND ORS. [S.B. SINHA, J.]
"Prof. B.N. Halder (Respondent No. 2) was so much A
attached with the day to day treatment of patient Anuradha
that he never found any deficiency in overall management
at AMRI so much so that he had himself given a certificate
that her condition was very much fit enough to travel to
Mumbai. .. " B

In answer to a question as to whether Dr. Halder had given
specific direction to him for control of day to day medicine to
Anuradha, he stated:

"... this was done under the guidance of Dr. Sukumar C
Mukherjee (Respondent No. 1), Dr. B.N. Halder
(Respondent No. 2) and Dr. Abani Roychowdhury
(Respondent No. 3)"

He furthermore stated that those three senior doctors D
primarily decided the treatment regimen for Anuradha at AMRI.

(iv) Dr. Kaushik Nandy had also stated that three senior
doctors were incharge of Anuradha's treatment.

(v) AMRI states that the drugs had been administered and E
nursing care had been given as per the directions of the
doctors.

(vi) Respondent Nos. 5 and 6, therefore, did not own any
individual responsibility on themselves although they were
F
independent Physicians with Post Graduate medical
qualifications.

In 'Errors, Medicine and the Law', Cambridge University
Press, p.14., the authors, Alan Merry and Alexander McCall
Smith, 2001 ed., stated: G

"Many incidents involve a contribution from more than
one person, and this case is an example. It illustrates the
tendency to blame the last identifiable element in the claim
of causation - the person holding the 'smoking gun'. A H
118 SUPREME COURT REPORTS [2009] 13 (ADDL.} S.C.R.

A more comprehensive approach would identify the relative
~
contributions of the other failures in the system, including
failures in the conduct of other individuals ... "

In R v. Yogasa Karan [1990] 1 NZLR 399, the New
Zealand Court opined that the hospital is in a better position
B
to disclose what care was taken or what medicine was
administered to the patient. It is the duty of the hospital to satisfy
that there was no lack of care or diligence. The ho~pitals are
institutions, people expect better and efficient service, if the
hospital fails to discharge their duties through their doctors,
c being employed on job basis or employed on contract basis,
it is the hospital which has to justify and not impleading a
particular doctor will not absolve the hospital of its
responsibilities. [See also Errors, Medicine and the Law, Alan
Merry.and Alexander McCall Smith, 2001 ed., Cambridge
0 University Press, p.12]

It is generally expected that very senior doctors would
behave' responsibly, and they were entitled to take any defence
which is available to them but they should not resort to
E mudslinging. This being a case where both sides being
doctors, fair dealings were expected from them.

CUMULATIVE EFFECT OF NEGLIGENCE

31. A patient would feel the deficiency in service having
r
F regard to the cumulative effect of negligence of all concerned.
Negligence on the part of each of the treating doctors as also
the hospital may have been contributing factors to the ultimate
death of the patient. But, then in a case of this nature, the court
must deal with the consequences the patient faced keeping in
G view the cumulative effect.
_.,,._
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.
H
MALAY KUMAR GANGULY v. DR. SUKUMAR 119
MUKHERJEE AND ORS. [S.B. SINHA, J.]
The complexities involved in the instant case as also differing A
... 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 under section 304-A cannot be objectively
determined. B

E.2. CONCLUSION
.+- 32. 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. c
B. Prasad were negligent, the ext€nt thereof and keeping in
view our observations made hereinbefore, it cannot be said that
they should be held guilty for commission of an offence under
Section 304-A of the Indian Penal Code. We furthermore in a
-1 case of this nature do not intend to exercise our discretionary D
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.

F. OBSERVATIONS OF THE CALCUTTA HIGH COURT
E
33. We must express our agony in placing on record that
the Calcutta High Court in its judgment has made certain
observations which apart from being not borne out from the
-1
records, are also otherwise highly undesirable.
F
Some of the conclusions arrived at by the High Court are
not based on the findings emerging from the records. These
conclusions are as produced as under:

"28 ... On 24.5.1998, it was noted "wounds were healing
G
well, epidermal islands have appeared over palms, soles
and trunk .............. no obvious Pseudomonas Colony like
before". All these noting in the record of Breach Candy
Hospital indicate that her skin had started healing and
undoubtedly, such healing was outcome of effective
H
120 SUPREME COURT REPORTS-[2009] 13 (ADDL.) S.C.R.

A treatment. This betterment of skin lesion in the instant case
could have been due to timely and effective treatment, +
undoubtedly with steroids. This may indicate the benefit of
treatment at Calcutta ...

It was furthermore stated:
B
"32. In this connection it is also to be mentioned that th~
death certificate alone cannot rule out the Rossibility
\
of _,._
accidental suicidal or homicidal cause of the death. A
post-mortem examination alone could rule out the
c possibility of these three kinds of death .... On the other
hand, the improvement of Anuradha as noticed before
25.5.1998 indirectly supports the argument that the
treatment at Calcutta was at best not wrongly directed."

D ~

"119 ... But in the present case, it indicates that there was
no fixed treatment, and no faith was reposed on any of the
accused doctors and over-jealousness of the patient party
practically brought the untimely death of a young lady.
E
The High Court observed that Anuradha died because of
interference of Kunal. Such an observation was made on the
basis of some representations although his name did not
appear in the records of AMRI. It was stated: ~

F
"124. At the close, it is to be pointed out that Dr.
Kunal Saha did not repose faith on any institution as can
be ascertained from his conduct discussed hereinabove
in details. He also failed to take the investigating agency
of this country into confidence and in paragraph 25 of the
G complaint, it was noted --"that the accused persons_ are
highly influential and are likely-to interfere with investigation .,.
and as such, complainant would be left with no other
alternative than to institute the complaint before the highest
magistracy of the Sessions Division of 24-Paraganas
H
MALAY KUMAR GANGULY v. DR. SUKUMAR 121
MUKHERJEE AND ORS. [S.B. SINHA, J.]
(South)". It is rightly contended by the learned counsel A
appearing on behalf of the accused doctors that such an
action may lead to two conclusions:--

(i) The complainant has no confidence on the police
investigation of this country, or, B
(ii) The police investigation could unveil some untold
facts or circumstances leading to the untimely death of
Anuradha.

Be that as it may, by filing a complaint for the purpose c
of proving the rash and negligent act against the three
specialized doctors, the complainant party intention?llY
took upon themselves a heavy burden of proving the case
which they actually failed to discharge. So it was claimed
i to be an uneven battle, which was declared by the D
complainant party without being aware of the law on the
subject and the consequences. It is needless to mention
that now-a-days there is an attempt amongst the patient
party to lodge complaint against the attending doctors for
the purpose of their punishment. On several occasions
E
patient party also ransacked the hospitals or chambers of
the doctors and mishandled them on the plea of negligence
to duty. In this way the doctors have been suffering from
~ fear psychosis."

We m_ust also express our great dissatisfaction when the F
Calcutta High Court stated:

"121. But it is sufficiently clear that a man of the
medical field now residing at United States with family after
acquiring citizenship of that country has challenged the G
conduct and integrity of the three Professors. In this
connection, I deem it proper to quote a remark of Lord
Denning MR in White House v. Jordan (supra);

" ................ Take heed of what has happened in the
H
122 SUPREME COURT REPORTS [2009] 13 (ADDL.) S.C.R.

A United States. 'Medical malpractice' cases there are very
worrying, especially as they are tried by juries who have
+
sympathy for the patient and none for the doctor who is
insured. The damages are colossal. The doctors insure but
the premiums become very high ; and these have to be
B passed on in fees to the patients. Experienced
practitioners are none to have refused to treat patients for
fear of being accused of negligence. Young men are even
deterred from entering the profession because of the risks i-
involved. In the interests of all, we must avoid such
c consequences in England. Not only must we avoid
excessive damages. We must say and say firmly, that in
a professional man, an error of judgment is not negligent
...............
II

Further the statement made by the High Court that the
D 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 AMRl's office and
the words "for better treatment" were written by Dr.Balaram
Prasad in his presence and these words were written by
E 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
F High Court.
G. SUMMARY

34. For the reasons aforementioned, the criminal appeals
are dismissed. As regards the civil appeal, the matter is
G 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.
H
MALAY KUMAR GANGULY v. DR. SUKUMAR 123
MUKHERJEE AND ORS. [S.B. SINHA, J.]
-+ We, keeping in view the stand taken and conduct of AMRI A
and Dr. Mukherjee, direct that costs of Rs. 5,00,000/- and Rs.
1,00,000/- would payable by AMRI and Dr. Mukherjee
respectively.

We further direct that if any foreign experts are to be 8
examined it shall be done only through video conferencing and
at th~ cost of respondents.

G.N. Appeals disposed of.