REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS. 1191-1194 OF 2005

Malay Kumar Ganguly … Appellant

Versus

Dr. Sukumar Mukherjee and others ….Respondents

WITH

CIVIL APPELLATE JURISDICTION CIVIL  APPEAL NO. 1727 OF  2007

Dr. Kunal Saha … Appellant

Versus

Dr. Sukumar Mukherjee and others …Respondents

J U D G M E N T

S.B. SINHA, J.  

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.  Anuradha, a child

Psychologist  by profession,  was a recent  graduate from a prestigious Ivy  

League School (‘Columbia University’ in the New York State).  Although a  

doctor by profession, Kunal has been engaged in research on H.I.V/ AIDS  

for the past 15 years.   

They left U.S.A. for a vacation to India on 24th March, 1998.  They  

arrived  in  Calcutta  on  1st April,  1998.   While  in  Calcutta,  Anuradha  

developed fever along with skin rash on 25th April, 1998.  On 26th April, Dr.  

Sukumar  Mukherjee,  Respondent  No.  1  herein  attended  and  examined  

Anuradha at her parental residence on a professional call.  Dr. Mukherjee  

assured the patient and her husband of a quick recovery and advised her to  

take rest but did not prescribe her any specific medicine.   However, two  

weeks  thereafter,  i.e.,  on  7th May,  1998,  the  skin  rash  reappeared  more  

aggressively.  Dr. Mukherjee was again contacted and as per his instructions,  

Anuradha  was  taken  to  his  chamber.   After  examining  Anuradha,  Dr.  

Mukherjee prescribed Depomedrol injection 80 mg twice daily for the next  

three  days.   Despite  administration  of  the  said  injection  twice  daily,  

Anuradha’s condition deteriorated rapidly from bad to worse over the next  

few  days.   Accordingly,  she  was  admitted  at  the  Advanced  Medicare  

Research  Institute  (AMRI)  in  the  morning  of  11th May,  1998  under  Dr.  

Mukherjee’s supervision.  Anuradha was also examined by Dr. Baidyanath  

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Halder,  Respondent  No.  2  herein.   Dr.  Halder  found  that  she  had  been  

suffering from Erithima plus blisters.  Her condition, however, continued to  

deteriorate  further.   Dr.  Abani Roy Chowdhury,  Consultant,  Respondent  

No. 3 was also consulted on 12th May, 1998.

On or about 17th May, 1998, Anuradha was shifted to Breach Candy  

Hospital,  Mumbai  as  her  condition  further  deteriorated  severely.   She  

breathed her last on 28th May, 1998.

Kunal sent a lawyer’s notice to 26 persons on 30th September, 1998.  

The first 19 addressees were those who had treated Anuradha at Kolkata  

while addressee numbers 20 to 26 were those who treated her in Mumbai.   

On or about 19th November, 1998 one of his relatives, Malay Kumar  

Ganguly  filed  a  Criminal  Complaint  in  the  Court  of  Chief  Judicial  

Magistrate, 24 Paraganas at Alipore  against Dr. Sukumar Mukherjee, Dr.  

Baidyanath Halder and Dr. Abani Roy Chowdhury, respondent Nos. 1, 2 and  

3 for commission of offence under Section 304-A of the Indian Penal Code.  

Thereafter Kunal filed O.P. Nos. 240 of 1999 against 19 persons who  

had rendered medical advice/treatment/facilities to Anuradha between 23rd  

April, 1998 and 17th May, 1998 at Kolkata before the  National Consumer  

Disputes  Redressal  Commission,  New  Delhi  (Commission).    However,  

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pursuant to the orders of the Commission names of some of the respondents  

were struck off.   

In  the  said  petition  the  complainant  claimed  an  amount  of  

compensation of Rs. 77,76,73,500/- with interest for the alleged deficiency  

in the service rendered by Respondent Nos. 1, 2, 3, 5, 6 and AMRI hospital  

(Respondent No.4).  

On or about 17.7.1999, a complaint was filed by Kunal against Dr.  

Sukumar Mukherjee, Dr. Baidyanath Halder and Dr. Abani Roy Chowdhury  

before  the  West  Bengal  Medical  Council  (WBMC)  making  allegations  

similar to the one he had made in his complaint before the Commission.  

On or about 29th May, 2000 , OP No. 179 of 2000 was filed by Kunal  

against the doctors, including Dr. Udwadia of the Breach Candy Hospital at  

Mumbai and the hospital itself before the Commission.

Before  the  learned  Chief  Judicial  Magistrate,  in  the  said  criminal  

complaint a large number of witnesses were examined.  A large number of  

documents  were  also  marked  as  exhibits.   The  learned  Chief  Judicial  

Magistrate, Alipore by his judgment and order dated 29th May, 2002 found  

Respondent Nos. 1 and 2 guilty of commission of an offence under Section  

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304-A of  the  Indian  Penal  Code  and  sentenced  them to  undergo  simple  

imprisonment for three months and to pay a fine of Rs.3,000/- each and in  

default to undergo a further simple imprisonment for 15 days.  Respondent  

No.3, Dr. Abani Roy Chowdhury was, however, acquitted.  

The West Bengal Medical Council dismissed the complaint filed by  

Dr. Kunal by its order dated 1st July, 2002.  

On  25th May,  2003  the  complainant-Kunal  withdrew  O.P.  

No.179/2009 filed before the Commission against the doctors/Breach Candy  

Hospital.   

Against  the order of the learned Magistrate,  Respondent No.1 filed  

Criminal Appeal which was marked as Criminal Appeal No.55 of 2002 and  

Respondent No.2 filed Criminal Appeal No. 54 of 2002 before the learned  

Sessions  Judge  at  Alipore,  whereas  the  complainant,  Mr.  Malay  Kumar  

Ganguly,  filed a revision application being C.R.R. No. 1856 of 2002 for  

enhancement of the punishment imposed on Respondent Nos. 1 and 2.  The  

complainant also filed another revision application before the High Court  

questioning  the  legality  of  the  judgment  with  respect  to  acquittal  of  

Respondent No.3.  The Calcutta High Court withdrew the appeals preferred  

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by Respondent Nos. 1 and 2 before the learned Sessions Judge to itself and  

heard the criminal appeals and revision petitions together.   

By a judgment and order dated 19th March, 2004 the appeals preferred  

by  Respondent  Nos.  1  and 2  were  allowed while  the  Criminal  Revision  

Petitions filed by the complainant were dismissed.  The said order has been  

challenged before us by way of Criminal Appeal Nos. 1191-1194 of 2005.

The Commission also by its judgment and order dated 1st June, 2006  

dismissed O.P. No. 240 of 1999.  Civil Appeal No.1727 of 2007 arises out  

of the said order.   

A.2. SUBMISSIONS OF APPELLANT:

Dr.  Kunal  Saha,  who  appeared  in  person,  made  the  following  

submissions :-

(i)  Respondent No.1 from the very beginning should have referred  

Anuradha to a Dermatologist as she had skin rashes all over her  

body.  

(ii) Diagnosis  of  Respondent  No.1  that  Anuradha  was  suffering  

from angioneurotic oedema with allergic vasculitis was wrong.  

In  any  event,  prescribing  a  long  acting  corticosteroid  

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‘Depomedrol’ injection at a dose of 80 mg. twice daily for the  

next  three days when it  was the beginning of angeioneurotic  

oedema  and the continued treatment on the same line later at  

AMRI by Respondent No.1 and other doctors led to her death  

inasmuch as   -

(a)  The Medical Journals as also the experts’ opinion  show  

that although steroid is not to be used when the patient is  

diagnosed  to  be  suffering  from  Toxic  Epidermal  

Necrolysis  (TEN),  and  although  some  doctors  still  

administer steroids, the administering of Depomedrol of  

80 mg.  twice daily,  could not  be prescribed under any  

clinical condition.  

(b) For  the  said  purpose  the  evidence  of  Dr.  Anil  Shinde  

(PW-8), Manager of Medical Service for Pharmacia; Dr.  

S. Bhattacharyya (PW-11), a highly respected Professor  

of  Pharmacology at  the  Banaras  Hindu University  and  

opinions  of  Prof.  Jo-David  Fine  ;  Professor  Gerald  

Pierard and  Prof. Fritsch Peter (Exts. 4, 5 and 6) opining  

that steroids and in any event Depomedrol could not be  

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prescribed; far less, in the quantity in which it had been  

done.

(iii) The pro-steroid experts also only use “quick acting” steroids for  

a short period and that too at very early stages of the disease  

and  then  quickly  stop  the  same  to  avoid  its  side  effects  to  

enhance the infection or taper it gradually.  

(iv) Respondents  failed  to  adhere  to  the  treatment  protocol  as  

outlined in the Table of the Textbook “Cutaneous Medicine and  

Surgery”  authored  by  Prof.  J.E.  Revuz  and  J.C.  Rojeau  

recommending  –  5  “Primary  Emergency  Care”  and  

“Symphtomatic Therapy” including specific direction for “fluid  

replacement’,  “antibacterial  policy”,  “nutritional  support’  etc.  

The aforementioned should have been advised for treatment of  

Anuradha at AMRI.    

(v) The treatment given to Anuradha at AMRI hospital continued  

as  Respondent  Nos.  2  and  3  jointly  took  charge  and  

recommended  steroids,  despite  stopping  “’Depomedrol’  after  

12th May, 1998 without realizing that she had already been a  

huge amount of  a “long-acting” steroid (Depomedrol)  and in  

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that view of the matter they should have administered adopted  

remedial measures which was not done.   

(vi) Respondents  Nos.2  and 3 added more fuel  to the  fire  in the  

form of a new “quick-acting” steroid, “Prednisolone” at 40 mg.  

three  times  daily,  which  was  itself  an  excessive  dose.   Dr.  

Udwadia  of  Breach  Candy  Hospital  noticed  the  same  when  

Anuradha was examined by him; as according to him not more  

than 40 mg. Prednisolone daily for one day, to be reduced to 5  

mg. within the next 5 to 6 days is the ideal dosage.      

(vii) When  a  patient  is  diagnosed  to  be  suffering  from  TEN,  

supportive therapy is imperative in character but no such advice  

was rendered.     

(viii) On and after 12th May, 1998, Anuradha was not provided any  

supportive treatment which could be evident from the hospital  

records seized by the police.

(ix) Although the police seized 71 pages of the record from AMRI,  

merely 22 pages are in relation to her stay during 11th May to  

17th May, 1998, whereas the medical record of Breach Candy  

Hospital  from 17th May to 27th May, 1998 cover around 370  

pages.     

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(x) At AMRI records of vital parameters like temperature, pulse,  

blood pressure; etc. were not maintained which itself is an act  

of gross negligence.  

(xi) Respondent Nos. 5 and 6, although were junior doctors,  also  

followed the treatment guidelines set forth by the three seniors  

doctors,  even  though they  were  independent  physicians  with  

postgraduate medical qualifications and, thus, it was expected  

of them that they would take their independent decisions.  

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

had been committed during the treatment of Anuradha.   

(xiii) The High Court committed a serious error in opining that there  

was no medical negligence on the part of Respondents.  

(xiv) The allegation that  the appellant  had resorted to forgery was  

arrived at by the High Court without any application of mind as  

Dr. Anil  Kumar Gupta testified that it  was Respondent  No.5  

who  had  inserted  the  words  “for  better  treatment”  in  his  

presence,  which  was  also  supported  by  Mr.  T.R.  Nehra,  

handwriting expert.  

(xv) The transfer certificate when issued, in any event, must be held  

to be ‘for better  treatment” as otherwise transfer of a patient  

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from one hospital to the other, in the situation of the present  

case, was not necessary.

(xvi) The claim that the appellant had interfered in the treatment and  

had been responsible for his wife’s death is absolutely incorrect  

inasmuch as his name did not even appear in any of the hospital  

records suggestive of any interference whatsoever.  

(xvii) The alleged defence of alibi  resorted to by Respondent  No.3  

and accepted by the High Court is not borne out from the record  

which  clearly  shows  that  he  was  closely  involved  in  the  

treatment of Anuradha at AMRI.  

(xviii) The  telephone  bills  brought  on  record  clearly  show  that  

numerous calls were made by Dr. Kunal Saha to Respondent  

No.3’s  residence  as  well  as  to  his  office,  during Anuradha’s  

stay at AMRI which clearly established that Respondent No.3  

was involved with Anuradha’s treatment.  

(xix) The High Court has failed to consider the previous decisions of  

this Court on criminal negligence,  as in the instant case gross  

negligence  on  the  part  of  the  Respondents  establishes  the  

offence committed by them under Section 304-A of the Indian  

Penal Code.

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(xx) Negligence in fact in Anuradha’s treatment had been admitted  

by the Respondents at different stages of the proceedings.   

A.3. SUBMISSIONS OF RESPONDENTS

Mr. Kailash Vasdev, learned senior counsel appearing for Respondent  

Nos. 1 and 2 would submit :-

(i) Kunal  misled  the  doctors  from  time  to  time  on  the  

drugs/treatment to be administered to Anuradha.

(ii) The Pathological Reports which were carried out on the basis of  

the prescription of Respondent No.1 had never been shown to  

him.

(iii) A  panel  of  elected  Committee  of  the  West  Bengal  Medical  

Council  being  an  Expert  Body  having  come  to  a  specific  

finding  vis-à-vis  the  Respondents  that  there  had  been  no  

deficiency or negligence on the part of the doctors and use of  

the drugs is demonstrative of the fact that Respondents had not  

committed an offence under Section 304-A of the Indian Penal  

Code.

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Mr.  Ranjan  Mukherjee,  learned  counsel  appearing  on  behalf  of  

Respondent No.3 contended :-

(i) It stands admitted by the appellant during his cross-examination  

that Respondent No.3 came to AMRI on 12th May, 1998 hours  

after Dr. B.N. Halder came there.   

(ii) There is no evidence that Dr. B.N. Halder and Respondent No.3  

were together at AMRI or that those they discussed about the  

treatment to be given to the patient.  

(iii) Dr. B.N. Halder in his examination under Section 313 of the  

Code of Criminal Procedure has admitted that the prescription  

was written by him and, therefore, Respondent No.3 cannot be  

said to have any liability.  

(iv) The plea of the appellant that a joint prescription was made by  

Respondent  Nos.  2  and  3  having  been  found  to  be  in  the  

handwriting of Kunal himself must be held to be a self-serving  

document.

(v) Apart  from  making  the  joint  prescription,  Respondent  No.3  

having not been involved in the treatment of the deceased, the  

prosecution has miserably failed to prove its case.    

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(vi) So far as the certificate of transfer of the patient is concerned,  

the same admittedly being interpolated, no credence thereto can  

be attached.  

(vii) As no witness has testified in support of the allegation that he  

was  the  principal  physician  of  Anuradha  during  her  stay  at  

AMRI, the courts below must have correctly held.

(viii) Respondent No.3 having been acquitted by both the courts, this  

Court should not exercise its jurisdiction under Article 136 of  

the Constitution of India as the view taken by the courts below  

is a plausible one.  

B. PROCEEDINGS

B.1. TRIAL COURT PROCEEDINGS

The common defence of all the Respondents in the case is denial of  

material allegations brought against them as also false implication.  Separate  

defences, however, have been entered into by each of the Respondents.  We  

would notice them in seriatum:

(i) Dr. Sukumar Mukherjee examined Anuradha Saha (deceased) only on  

7th May, 1998 and 11th May, 1998.  He left India on 11th May, 1998  

which  was  within  the  knowledge  of  her  husband.   He  treated  

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Anuradha  as  per  medical  protocol.   He  diagnosed  her  disease  as  

allergic/hypersensitivity  vasculitis.  Depomedrol  was  correctly  

prescribed,  being  required  for  the  disease  Anuradha  had  been  

suffering from.  The dose prescribed was also correct.  He prescribed  

certain tests to be taken on 7th May as also on 11th May but he was not  

apprised  of  the  results  of  those  tests.   On  11th May,  he  had  also  

prescribed the requisite supportive treatment which was necessary for  

the recovery of Anuradha.

(ii) Dr. Baidyanath Halder examined the patient for one day only on 12th  

May, 1998.  He diagnosed the disease as Toxic Epidermal Necrolysis  

(TEN)  correctly  and  prescribed  medicines  as  per  the  treatment  

protocol  noted in the text  books.   He examined the patient  having  

been  requested  by  a  group  of  his  students  who  were  friends  of  

Anuradha’s husband.  He did not charge any fees.  He prescribed all  

necessary supportive therapy required for the patient of TEN.  He had  

not been given any feedback by the husband of the deceased after 12th  

May, 1998.

(iii) Dr. Abani Roychowdhury had never seen the patient nor treated her at  

AMRI at any point of time.  He being attached to AMRI visited the  

hospital once in a week at the outdoor.  On 12th May, 1998 having  

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been requested by Dr. Kunal Saha as also Dr. Prasad, he went to the  

cabin  only  for  the  purpose  of  boosting  the  patient’s  morale.   He  

neither  treated  her  nor  was  he  a  member  of  the  team  of  doctors  

treating  Anuradha  at  AMRI.   As  despite  requests  he  had  not  

participated in the treatment of the deceased, Kunal implicated him  

falsely.

(iv) Respondent No. 4 contended that the Appellant was fully aware of the  

absence  of  a  burn ward in  AMRI at  the  time of  admission  of  the  

deceased  patient.  Furthermore,  the  deceased  was  shifted  to  a  VIP  

cabin  in  the  hospital  which  was fully  isolated,  with  environmental  

temperature  control.   Moreover  it  was  Kunal,  himself  who  had  

prevented  the  nursing  staff  from  taking  the  temperature,  blood  

pressure  etc.  Also  the  infection,  as  alleged,  aggravated  due  to  

transportation  of  the  deceased from Kolkata  to  Mumbai.  Moreover  

non administration of IV fluids is a matter of judgment for the treating  

doctor and is not open to the Hospital Management to interfere with.

(v) Respondents  5,  Dr.  Balaram  Prasad  contended  that  the  medical  

treatment sheet of AMRI dated 11.5.1998, would show that he not  

only attended the patient for the first time but he also meticulously  

noted the diagnosis and continued the same medicine for one day as  

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was prescribed by Dr. Mukherjee. Before, however, medicines as per  

his  prescription  could  be  administered, Respondent  Nos.1  and  

Respondent 2 took over the treatment.

(vi) Respondent 6, denied the allegation of the appellant that he did not  

give  effect  to  the  medical  protocol  while  dressing  Anuradha.  

According to him, reference was made to him by Respondent No.5 for  

the sole purpose of dressing the patient.  He took care of the patient as  

far as wound care was concerned and did the dressing as per medical  

norms in support whereof reliance was placed on the opinion of Dr.  

Jean Claude Roujeau of France.   

Respondents did not plead guilty, they were put to trial in the criminal  

matter.

Before the learned Chief Judicial  Magistrate,  South – 24 Parganas,  

Alipore, the prosecution examined 11 witnesses.  The complainant Malay  

Kumar  Ganguly  examined  himself  as  PW-1  whereas  husband  of  the  

deceased Kunal examined himself as PW-2.  Dr. Balaram Prasad who was a  

visiting consultant of AMRI at the relevant time was examined as PW-3.  He  

is  Respondent No 5 in the connected civil  appeal.   Dr.  Aloke Majumdar  

attached to the B.R. Singh Railway Hospital, Sealdah as Senior Divisional  

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Medical officer (ENT) examined himself as PW-4.  PW-5 is Dr. Anil Kumar  

Gupta  who  was  attached  to  the  Sub-divisional  Hospital,  Asansol  as  a  

Medical Officer.  The President of the West Bengal Medical Council Dr.  

Ashoke  Kumar  Chowdhury  was  examined  as  PW-6.   Prasenjit  

Bhattacharjee, a Sub-Inspector of Kolkata Police who was attached to the  

Lake Police Station at the relevant time was examined as PW-7.  Dr. Anil  

Shinde,  a  medical  practitioner  and Manager  of  Pharmacia  India  Limited,  

Gurgaon, Haryana (the company manufacturing Depomedrol) was examined  

as PW-8.  Dilip Kumar Ghosh who was the Registrar, West Bengal Medical  

Council has been examined as PW-9.  Dr. Faruk E. Udwadia, a consultant  

physician  with  specialization  in  critical  care  and respiratory  medicine  of  

Breach Candy Hospital, Mumbai who treated the deceased from 12th May,  

1998  to  18th May,  1998  was  examined  as  PW-10.   Dr.  Salil  Kumar  

Bhattacharjee,  Professor  of  Pharmacology  Institute  of  Medical  Science,  

Benaras Hindu University was examined as an expert  witness PW-11 on  

behalf of the prosecution.

The  defence  has  also  examined  3  witnesses.   DW-1  Smt.  Sutapa  

Chanda is the Nursing Superintendent of A.M.R.I.  Dr. Kaushik Nandy, a  

Plastic Surgeon attached to AMRI, who is a Respondent in the connected  

Civil Appeal and had treated the deceased, was examined as DW-2.  Mihir  

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Pal,  a  Group  ‘D’  staff  attached  to  Asansol  Sub-Sivisional  Hospital  was  

examined as DW-3.

The  prosecution  proved  as  many  as  20  documents,  whereas  the  

defence has proved 4 documents.   

Before the learned Trial  Judge as also before the Commission,  the  

parties  hereto  had  relied  upon  several  medical  text  books  of  different  

authors, journals, research papers/ deliberations of the National Conference  

on  Medical  Science,  transcripts  of  CDs,  package  insert,  etc.   One  audio  

cassette  has  been  produced  on  behalf  of  the  complainant  to  prove  the  

conversation which took place between him and the President of the West  

Bengal Medical Council Dr. Ashoke Kumar Chowdhury.

JUDGMENT OF THE TRIAL COURT   

The Trial Court observed as under:

I. The cause of death of Anuradha was Septicemia shock with multi-  

organ failure leading to cardio-respiratory arrest.

II. The Breach Candy Hospital, Mumbai was not responsible for causing  

the death of Anuradha.

III. Re : Dr. Sukumar Mukherjee:

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(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  

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 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.,  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 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  contentious  since  it  implies  a  immunological  etiology  which  may  be  an  over simplification.  Allergic vasculitis is the  

20

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  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 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  become  immunosuppressed  leading  to  

‘Septicemia’ or ‘Septic shock’.

(iii)PWs 5 and 11 also deposed about high dose of Depomedrol.  Its  

adverse  effects  caused  ‘Immunosuppression’  and  ‘Septicemia’  

which 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  any  dermatological  or  other  clinical  

condition is 40 mg to 120 mg once a week or once in two weeks as  

21

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 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.  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  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 opportunistic infection.  Sepsis  

is a severe infective condition which is systemic in nature and is  

caused 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 the following reply:

22

“…our package insert on Depomedrol does  not  recommend  the  twice  daily  dose  of  injection Depomedrol 80 mg. in any clinical  condition…”

(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  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.

(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 J.  

Revus and J.C. Roujeau (Ref. Archives of Dermatology, Vol.  

123, pages 1156-57) had also not been followed.

23

(x) Although steroids are used but the supposed advantage of the  

said therapy are far outweighed 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 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  

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.

(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 overuse and excessive dose of the said steroids including  

Depomedrol.

(xiv) Even  Dr.  Kaushik  Nandy  (DW-2)  admitted  that  

immunosuppression can be a side-effect of overuse or excessive  

24

use of Corticosteriods and 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,  the text  

book  on  which  both  sides  placed  reliance,  it  is  stated  that  

“Glucocorticosteroids  (steroids)  may  promote  the  risk  of  

infection (Pneumonia, Septicemia)”.

(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  

Haemodialysis was not put to Dr. Udwadia and, 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 if large doses of  

steroids are administered.

25

(viii)Non-examination  of  some  witnesses  like  the  brother  of  the  

deceased  Amritava  Roy  and  sisters  of  AMRI  was  not  very  

material.

Dr. Sukumar Mukherjee was accordingly held guilty of the charge of  

negligence.

IV. Dr.  Baidyanath Halder  

(i) He  although  diagnosed  correctly  but  prescribed  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 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  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 equivalent to 1100 mg. of Prednisolone but  

26

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.

(iii)As Dr. 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 patient from 12th May, 1998 at least  

upto 16th May, 1998.

(v)Non-tapering of doses of steroid is  in violation of the treatment  

protocol for the disease TEN.  The 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 that “journey from Kolkata  

to Bombay likely to 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., in the certificate itself to show  

that it was issued at the instance of the patient party.

27

(viii)The defence that the patient was removed at their own risk is not  

correct as Dr. Saha did not furnish 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 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 Candy Hospital, the  

certificate  issued  does  not  properly  reflect  the  actual  physical  

condition  of  the  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 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-3  Dr.  B.  Prasad  wrote  to  continue  as  

28

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 been to AMRI  

is wholly unworthy of credence as 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 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 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.

(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 borne out from the treatment  

sheet and consultation record maintained and kept by the nurses at  

29

AMRI particularly in view of the statement of DW-1 that Anuradha’s  

nurses had been maintaining all the records.

VII. There is nothing on record to show that any advice was given for  

biopsy.  It was not necessary to conduct the post-mortem on the dead  

body of Anuradha as the cause of death, as expressed by Dr. Udwadia,  

was known.  Immunosuppression having been found by Dr. Udwadia,  

permission for laboratory tests was not considered necessary.

B.2. HIGH COURT JUDGMENT

(i) The High Court on the other hand in its judgment observed that in  

view of the nature of the offence under Section 304-A,  coupled with  

the fact that the penalty imposed therefor was imprisonment for two  

years,  the  Chief  Judicial  Magistrate  should  have  converted  the  

summons case into a warrant one.   

(ii) The C.J.M. should not have issued warrant of arrest without treating  

the case into a warrant case.   

(iii) It should have been considered that three renowned professors of the  

State could have been man handled (by the police) on the basis of said  

arrest warrant.  

30

(iv) The fact that accused doctors did not levy any professional fees was  

also a matter of relevance.

(v) In absence of the post-mortem examination with regard to the cause of  

death of Anuradha, it must be held that the death was a natural one.  

The death certificate issued by the Breach Candy Hospital, Mumbai  

was  not  a  conclusive  proof  of  the  cause  of  death  but  was  only  a  

tentative  one.   It  was  silent  about  the  antecedent  cause  or  other  

significant conditions contributing to the death.  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  

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) Improvement to her health noticed in the Mumbai hospital after 25th  

May, 1998 ran contrary to the contention of complainant.  

Re : DR. MUKHERJEE  

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  

31

Depomedrol, 80 mg, IM stat twice daily and other drugs in improper dosage  

at improper 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, 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 disorders generally steroids  

would be used and thus the trial court was not correct to hold  

that Dr. Mukherjee should not have prescribed Depomedrol.   

(iii) There is nothing on record to show that the drug was actually  

administered  to  the  patient  because  no  feedback  of  the  

treatment was given to him.   

(iv) At  the  time  of  admission  at  AMRI,  Dr.  Mukherjee’s  

prescription was not taken into consideration.   In fact  it  was  

indicated that the patient was being treated by somebody else  

whose identity had not been disclosed.  

32

(v) Diagnosis that Anuradha was suffering from TEN was not done  

by Dr. Mukherjee.  The package insert 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  -  Dr.  A.K.  

Ghoshal, it could not be construed to be 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 suffering from TEN.   

(vii) Oral admission of Tab. Wysolone was sufficient to indicate that  

the treatment of the patient was being carried out  as per the  

prescription  of  Dr.  Mukherjee.   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 that Kunal’s doctor  

friends contributed in her treatment.  

33

(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  treatment  protocol  for  allergic  

disorders.  In fact, 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 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.  

Re : DR. HALDER   

The allegation of the complainant that the prescription by Dr. Halder  

of Prednisolone 40 mg. thrice daily had aggravated 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, therefore, had no role to  

34

play in the treatment of Anuradha which would be evident from  

the record of AMRI.   

(ii) There is nothing on record to show that the prescription of Prof.  

Halder was given effect to.   

(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  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  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.

(vi) There  was  no  evidence  to  indicate  that  Dr.  Mukherjee  ever  

requested Dr. Halder to see the patient.  

35

(vii) Despite the fact that Dr. Halder confirmed that the patient was  

suffering from TEN, records indicated that his line of treatment  

was  not  followed  and,  thus,  the  evidence  to  consider  the  

deceased to be suffering from TEN is of no value.

(viii) Anuradha  was  thus  not  suffering  from TEN.   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.

(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  opinion  is  irrelevant,  

particularly when he is said to have become specialist of TEN  

subsequently upon studying the subject after her death.  

(xi) Prescription  of  Prof.  Halder  indicted  that  he  stopped  Depo-

Medrol once he started Prednisolone 40 mg. thrice with other  

medicines.   He  also  prohibited  local  anesthesia,  Neomycin,  

36

Soframycin.  He also gave importance on Elecrtolyte balance,  

nutrition and advised for prevention of secondary infection.

(xii) Prof.  Halder  is  a  renowned  Dermatologist  with  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  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.  

Re : PROF. ABANI ROY CHOWDHURY.  

Allegation  that  he  had  also  taken  active  part  in  the  treatment  of  

Anuradha is not established from the record.

There is nothing on record to show that Dr. Halder while writing the  

prescription had any prior discussion with Dr. Abani Roychowdhury.  The  

37

endorsement that the prescription was a joint prescription of Dr. Halder and  

Dr. Roychowdhury was admittedly made by Dr. Kunal Saha himself  

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  

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 the course of evidence it was proved that there was an  

interpolation in the certificate.  The same was also admitted by Dr. Balaram  

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.  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 of 18th May, 1998, the dressing of  

Anuradha  was not  changed.   Thus,  by  removing Anuradha,  her  husband  

38

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 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.  

GENERAL OBSERVATIONS BY THE HIGH COURT

(i) As Anuradha 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 absent.  

(ii) The contention of Dr. Kunal Saha that his wife was almost dead when  

brought to Breach Candy Hospital, was untrue.

(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.  

(iv) Interference  by  Dr.  Kunal  Saha  was  sufficient  to  indicate  that  

treatment  of  Anuradha  was  monitored  by  him  alone  and  nobody  else.  

39

Although, he claimed that Anuradha was suffering from TEN which was a  

dermatological disease, but Anuradha was admitted by him under a Plastic  

Surgeon, Dr. S. Keshwani.  Even at the initial stage Dr. Kunal 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. 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  

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 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 the patent  is  

admitted;  as  soon as  any interference  is  made  therewith,  the  doctors  are  

absolved of their liability.   

40

Charge of professional negligence on a medical person 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 making a choice  

when two options are available.  The mistake 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 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.

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 recovery. But it is not expected that in case of all  

ailments the doctor can give guarantee of cure.  

B.3. NATIONAL COMMISSION JUDGMENT

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The Commission in its judgment noted that doctor or a surgeon never  

undertakes that he would positively cure the patient nor does he undertake to  

use the highest degree of skill, 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 towards him

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.

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 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 12th of May 1998. Dr. Haldar, it  

noted, was, therefore, an unnecessary party.

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It opined that all the necessary care was taken by Dr. 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  

concluded that there was no negligence on the part of the doctors.

C. DETERMINATION  OF CERTAIN SALIENT POINTS OF LAW  AND FACTS

C.1. EXPERT EVIDENCE  

Section 45 of the Indian Evidence Act speaks of expert evidence. It  

reads as under :-

“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 person called experts.

Illustrations

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

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(b) The question is whether A, at the time of doing  a  certain  act,  was  by  reason  of  unsoundness  of  mind, in capable of 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  mind,  and  whether  such  unsoundness  of  mind  usually  renders  persons  incapable of knowing the nature of the 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 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 documents were written by the same person or  by different persons are relevant.”

A Court is not bound by the evidence of the experts which is to a large  

extent advisory in nature.  The Court must derive its own conclusion upon  

considering the opinion of the experts which may be adduced by both sides,  

cautiously, and upon taking into consideration the authorities on the point on  

which he 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 must take into  

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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 given  

thereto,  lies  within  the  domain of  the  court.   The evidence  of  an expert  

should, however, be interpreted like any other evidence.   

This Court in State of H.P. v. Jai Lal and others, [ (1999) 7 SCC 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 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. 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  that  he  is  skilled and has adequate knowledge of the subject.

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 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  

45

the  evidence  of  the  case.  The  scientific  opinion  evidence,  if  intelligible,  convincing  and  tested  becomes a factor and often an important factor for  consideration along 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.

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.  State  of  W.B.  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, 5 AND 6

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.   

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, Respondents could have asked for their cross-examination  

at any point of time and not having done so, it does not lie in their mouth to  

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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

Kunal,  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.   

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  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 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  

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procedure  laid  in  that  behalf,  therefore,  must  be  strictly  complied  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

The said exhibits, however, are admissible before the consumer court.  

This Court in  R.V.E. Venkatachala Gounder 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. 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 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 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  be  raised  at  any  stage  subsequent to the marking of the document as an  

48

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  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  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 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  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  timely  objection  amounts  to  waiver of the necessity for insisting on formal proof  of a document, the document itself which is sought  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  Act,  1986  provides  that  

Sections 12, 13 and 14 thereof and the rules made thereunder for disposal of  

the complaints by the District Forum, shall with such modification as may  

be considered necessary by the Commission, be applicable to the disposal of  

disputes by the National Commission.  Section 12 of the 1986 Act provides  

49

for the manner in which the complaint shall be made.  Section 13 prescribes  

the procedure on admission of the complaint.  Sub-section (3) thereof 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 justice have not been complied  with.”

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  the  principles  of  

natural justice, save 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 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.  

[ See  Bharat Bank Ltd. v.  Employees of the Bharat Bank Ltd. [1950 SCR  

459]  and  Nahar  Industries  Ltd.   v.   Hong  Kong  &  Shanghai  Banking  

Corporation etc. (Civil Appeal arising out of SLP (C) No. 24715 of 2008 etc  

decided on 29th July, 2009)]

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Mr. Gupta, learned counsel appearing on behalf of Dr. Balram Prasad  

contended that the opinions, exhibits P-4, P-5 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 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 correctness thereof  

either before the court or before the Commission. They did not examine any  

expert to show that said opinion are not correct.  The concerned respondents  

in  their  depositions  before  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  

SCC 635], held as under :-

“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  Commission  may  consume  time. The Act specifically empowers the Consumer  Forums  to  follow  the  procedure  which  may  not  require  more  time or  delay  the  proceedings.  The  

51

only  caution  required  is  to  follow  the  said  procedure  strictly.  Under  the  Act,  while  trying  a  complaint,  evidence  could  be  taken  on  affidavits  [under  Section  13(4)(iii)].  It  also  empowers  such  Forums to issue any commission for examination 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  examination-in-chief  of  a  witness  shall  be  on  affidavit and copies 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  Commissioner  appointed by it. As stated above, the 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 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. In case where stakes are very high 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 claims such video conference. Further,  cross-examination  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  

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Toxic  Epidermal  Nnecrolysis  (TEN  hereinafter)  is  also  known  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 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. [See Dermatology in General Medicine ( Fitz  

Patrick’s) (5th Ed), and Comprehensive Dermatological Drug Therapy]

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.   

Anuradha,  it  is  conceded,  was suffering from TEN.  She had been  

positively diagnosed to be suffering from the said disease on 12th May, 1998.  

TEN is  a  spectrum of  symptoms.   The  treatment  protocol  for  TEN has  

undergone considerable change throughout the world.

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  

53

used.   Such a  conclusion  was  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 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 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.  

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.   According to them, the treatment pattern  

should be as under:

“The  disease  usually  begins  with  non  specific  symptoms,  such  as  fever,  cough,  sore  throat,  burning eyes, followed in 1 to 3 days by skin and  mucous  membrane  lesions.  A burning or  painful  

54

rash  starts  systematically  on  the  face  and  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  erythema.  Symptomatic therapy is a must. IV fluids must be  replaced mandatorily.                

The treatment protocol includes: • Symptomatic treatment • Monitoring • Fluid  replacement  and  anti-infection  

therapy • Nutrition • Warming (30-32 degree Celsius) • Skin care • Eyes and mucous membrane care”

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 been observed in many patients treated without  

steroids.

After  the  death  of  Anuradha,  Kunal  consulted  a  large  number  of  

experts from various countries including India.   

The Canadian Treatment Protocol is as under:

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“IV fluid resuscitation- including internal feeding,  use of air- fluidized beds, complete avoidance of  steroids, use of 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 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”.

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.

Dr.  David  Fine,  Dermatologist  from University  of  North  Carolina  

opined as under:

“.....  conventional  therapy of  TEN with  systemic  corticosteroids involves either oral or intravenous  preparation.  I  have  personally  never  seen  intramuscular  corticosteroids  administration  for  this  condition.  In  addition,  intramuscular  corticosteroids are never given on a BID schedule  (and  with  some  preparations  no  more  frequently  than every  4-6 weeks)  because  of  the  prolonged  Depot  effect  related  to  administration  by  this  particular  route.  In  general,  intramuscular  administration  of  systemic  corticosteroids  is  not  employed  in  the  treatment  of  dermatological  

56

diseases  since  this  routes  provides  very  erratic  release of medication from the tissue.....”

He  also  remarked,  as  far  as  the  treatment  in  the  present  case  is  

concerned:

“ .... manner in which the treatment was instituted  in  your  wife  certainly  appears  to  be  unprecedented.”

Dr. David Heimbach, Professor 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  

condition, leave aside for, far less an acute medical condition such as the one  

the patient 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  TEN with  95% total  BSA  

involvement  were  treated  without  use  of  steroids  and  there  was  100%  

survival rate.   In his view, the keystone, for survival in patients with TEN is  

fluid  resuscitation  and  nutritional  support  and  vigilant  surveillance  for  

infection.  

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Gerald Pierard in his treatise on TEN stated:-  

a) Antiseptic  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  can  be  left  in  place  but  when they  burst,  the  narcotic  skin  must  be  eliminated  otherwise  it  becomes  an  excellent  medium  for  the  proliferation  of  microorganisms.  Repeated skin swabs should be done to  detect excessive coetaneous infection and  to  guide  prophylactic  antibiotherapy.  Systematic  antibiotics  should  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 the white cells  count  with  neutropenia.  The  search  of  these signs implies a permanent patient’s  supervision  with  many  blood  takes.  Of  course, unnecessary i.v. catheters should  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 litres of fluid per day are needed  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  

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way  is  absolutely  inadequate,  more  especially as digestive tract is also often  injured.  Once more,  as  previously  said,  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  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 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  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:

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“ 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  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  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  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  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.        

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 Apollo Hospital, Delhi, on a query made by the  

appellant,  opined  that  the  treatment  protocol  should  be  symptomatic  and  

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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 1991 − Intravenous  canalization  for  fluid  replacement  

depending upon % of TBSA, Nasogastric tube feeding,  catheter if required

− Topical skin care − Monitoring serum electrolytes by culture − Room Temperature  of  about  30-32  degrees  Celsius,  

sterile environment, air fluidized bed, barrier nursing − Encourage oral fluids − Hyperbaric  oxygen,  aerosols,  bronchial  aspiration,  

physical  therapy,  therapies  for  herpes  and  mycoplasma.

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  patient’s  life  can  be  saved.   Death  due  to  usage  of  

corticosteroids in TEN patients, he stated, occurs only when :

− The reaction is not controlled properly − Corticosteroids are not withdrawn quickly

Attention has also been drawn to the protocol treatment on behalf of  

the respondents.  They have placed reliance on a number of authorities to  

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suggest  a  protocol  of  treatment  of  the  disease  TEN  in  which  the  

administration of glucocorticosteriods plays an integral  role.  Some of the  

authorities suggested by them include:

− Journal of Association of Physicians of India.

− Comprehensive Dermatological Drug Therapy.

− Dermatology by O. Brian Falco.

− Dermatology in General Medicine (Fitz Patrick) (5th Ed)

− Goodman and Gillman: The Pharmacological Basis of Therapuetics  

(9th) (Ed)

− Harrison’s Principle of Internal Medicine

− Principle’s of Pharmacology.

− 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 Dermatology

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

Nonetheless the following principles are integral to the treatment of  

TEN as suggested by the Respondents:

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a. Treatment  in  burn  units  should  be  strived  for  in  exceptional  

cases but is not generally necessary.

b. Treatment  has to be individually  tailored according to cause,  

type, stage and presence of complications.  

c. Systemic glucocorticoids should not be used 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 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. 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  appropriately.  Fluid  replacement  

regimens as used for burn patients.  

f. Supportive care is of great importance and particular attention  

must be paid to a high calorie and high – protein diet.  

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g. Debridgement of necrotic skin should not be 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.  

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 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.

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 used lesser doses of corticosteroid.  Although  

he had not used Depomedrol and he had no experience with the said drug, he  

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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 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 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 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 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  corticosteroid  

meaning thereby methyl prednisolone.

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(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 sepsis.

(iii) Supportive treatment must be administered.

(iv) It  should  be  individually  tailored  according  to  the  patients’  

need.

Supportive treatment is also advised by Dr. Pasricha and others.

Two factors, however, must be noticed at this juncture :

(i) The  chemical  composition  of  Depomedrol  is  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 unequivocal.

(ii) All the authors are one in stating that their opinion is subject to  

the instructions given in the package insert of the medicine.   

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  

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distributor of the said product  in India.  The packet insert  of Depomedrol  

reads as under:

“DOSAGE:-

The usual  dosage for  patients  with Dermatalogic  Lesions benefitted by systemic corticoid therapy is  40-120  MG  of  Methyl  Prednisolone  acetate  administered  intramuscularly  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  5-10 day intervals  may be  necessary. 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 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  duration  of  the  treatment  should  be  kept  as  short  as  possible.  Medical  surveillance  is  necessary.  

PROPERTIES

After  a  single  IM  injection  of  40-80  MG  of  Depomedrol,  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  

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prednisolone  peaks  of  approximately  21.5  micrograms/  100  ML.  After  intrarticular  administration,  methyl  prednisolone  acetate  defuses  from  the  joint  into  systemic  circulation  over approximately 7 days as demonstrated by the  duration  of  HPA  Axis  suppression  and  by  the  serum Methyl Prednisolone Values.  

INDICATIONS

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 (Solumedrol) is indicated.  

PRECAUTION

Since  the  complications  of  treatment  with  glucocorticoids  are  dependant  on  the  size  of  the  dose and the duration of 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 new infections may appear during their use.  

There may be decreased resistance and inability to  localise infection when glucocorticoids are used.  

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Do  not  use  intrarticulary,  intra  bursally  or  intra  tendinous administration in the presence of acute  infection.  IM  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 instructions in the said packet  

insert had not been followed in the instant case.

EFFECT OF EXCESS DOSAGE

There is, thus, 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  

twice daily, but had also prescribed Wysolone which is also a steroid having  

the composition of Methyl Predinosolone.

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 prescribed the same medicine.  From Dr. Mukherjee’s  

prescription  dated  11.05.1998,  it  is  furthermore  evident  that  he  had  

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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 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  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 (AIIMS) has categorically stated, “Depo – preparations are used  

for chronic diseases and not for acute disease like TEN. Secondly, Depo  

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 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 cause of Anuradha’s  

death  was  due  to  Septicemia,  which  happened  as  a  result  of  profound  

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immuno – 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 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 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 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 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  

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administration of any drug, he answered that  the choice is  “prerogative”.  

However,  he  has to  follow the pharmaco- therapeutic  norms of  the  drug  

chosen.   

SUPPORTIVE THERAPY

No symptomatic therapy was administered.  No 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  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 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.   

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  

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administer drugs.  No nasogastric 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 specialist in his prescription noticed blisters around the lips  

of the patient which led her 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)

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 even did not maintain  

its records properly.  The nurses reports clearly show that from 13th May  

onwards even the routine check-ups were not done.   

LINE OF TREATMENT

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Kunal  and Anuradha  came on a  vacation  to  Calcutta  on  1st April,  

1998, principally to attend a wedding in the family.  Anuradha supposedly,  

after eating some Chinese food in some restaurant, developed fever and skin  

rash on or  about  25.4.1998.   Respondent  No.1,  Dr.  Sukumar Mukherjee,  

indisputably is a very reputed Physician.  He was a Professor of Medicine in  

Calcutta  Medical  College.   Anuradha and Kunal 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 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  was  diagnosed  to  be  suffering  from  ‘Anglo-Neurotic  

Oedema with allergic vasculitis’.  Respondent No.1 prescribed Depomedrol  

stat (immediately) injection 80 mg. on a twice daily schedule(B.I.D)  for 3  

days to be followed by other oral steroids.  One injection was given by him.   

Despite  the  institution  of  Depomedrol,  Anuradha’s  condition  

worsened from bad to  worse  in  the  next  few days  and Dr.  Kunal  Saha,  

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contacted Respondent No. 1 from time 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.  

A.K.  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  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  Institute  

(AMRI) (Respondent No. 4).   On being admitted she was examined by Dr.  

Balaram Prasad, Respondent No.5, who also continued with the injection of  

Depo-Medrol 80 mg.(2 ml.) I/M B.D. x 1 day.  

Anuradha  was  examined  by  Respondent  No.1  at  2.15  p.m.  on  the  

same date.  The prescription provided for Inj. 'Depomedrol' 80 mg IM twice  

daily x 2 days (then 40 mg IM twice x days) among other things.

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On the basis of the said advise Anuradha was examined by Consultant  

Dermatologist Dr. A.K. Ghoshal.  Anuradha was diagnosed to be suffering  

from TEN. The bed ticket reads as under :-

“Toxic Epidermal Necrolysis.

Separation  of  large sheets  of  skin from back and  limbs, 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.  

Maintain fluid and electrolyte balance. Maintain maximum asepsis. Continue same medicines. Soframycin cream to apply on rash areas only Capsule Zevit - 1 Cap daily To be reviewed later.”

Respondent  No.3,  Prof.  Dr.  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,  Dr.  Baidyanath  Halder,  a  Consultant  Dermatologist  of  fame  and  

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  

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Anuradha  was  suffering  from  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.   

Dr. Prasad referred the patient to the following Consultants.   

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

(ii) Dr. Purnima Chatterjee – a Gynecologist ;

(iii) Dr. S. Ahmed – an E.N.T. Surgeon ;

(iv) Dr. S. Bhattacherjee ; and

(v) Dr. N. Iqbal – General Surgeon.

Her condition deteriorated further.  On or about 17th May, 1998 Kunal  

was advised to shift Anuradha to Breach Candy Hospital, Mumbai.  For the  

aforementioned purpose Respondent No.2 issued a certificate.  Three words  

in the said certificate, namely – “for better treatment” were said to be added.  

A  Chartered  Plane  was  arranged  for  taking  Anuradha  to  Mumbai  from  

Kolkata on 17th May, 2009.  She was admitted in the said hospital at about  

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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  admission  is  serious.  She  has  been  accompanied  by  her  husband  Dr.  Saha,  who  has  given  the  history  of  antibiotic  injection  for  respiratory  tract  injection  -  Rovamycin,  Routhromycin,  Ampicillin  and  Ampiclox  and  Nemuslide  followed  by  development  of  Toixc  Epidermal  Necrolysis.  She  has  received  T  Prednisolone 120 mg/day for 7 days and also Inj.  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.”  

She was examined by Dr. Farokh E. Udwadia at the Breach Candy  

Hospital in the afternoon of 18th May, 1998.  His diagnosis was as under :-

“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 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  management  is  the same. I do feel that the dose of steroids used in  

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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.”

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 :-

“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  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.

He was also advising the use of Erthropoitin as a  marrow stimulant.  My view was that at the point of  time Erythropeitin will  make no difference to her  condition.   To increase her  Hb.,  from the present  and Requested packed RBC infusions.   

He  was  keen  on  immediately  giving  a  tonic  supplement.  In my experience at this point of time,  Zinc supplement was not of immediate importance  that if gut was working and her external feed could  be increased, she would receive sufficient tonic.”

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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.   When  presented  with  his  arrogance and condescends – merely and solely for  the  patient’s  sake.   To  keep  the  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  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 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:

Nosocomial infections are infections which are a result of treatment in  

a hospital or a healthcare service unit, but secondary to the patient's original  

condition. Infections are considered nosocomial if they first appear 48 hours  

or more after hospital admission or within 30 days after discharge. Thus it  

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becomes the liability of the hospital to prevent such infection specially in the  

cases where the patient has high risk of infection due to the nature of disease  

suffered.

AMRI  as  also  the  other  respondents  say  that  the  room was  made  

infection free.  Certain restrictions on the visitors had also been taken.  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  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.

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 first lead to immunosuppression which may in turn  

lead to septisis.   

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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 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 green tinge would not occur within a day.  

Thus,  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 to control such bacterial infection, the antibiotics were administered.

C.3. FINDINGS AND ANALYSIS WITH RESPECT TO SO CALLED  

CLEAVAGE OF OPINION

FINDINGS ON SO CALLED CLEAVAGE OF OPINION

Appellant,  thus, has placed 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 was no deficiency in service?  In other words,  

the question is as to whether the treatment of Anuradha was in accordance  

with the medical protocol.  In our opinion, the answer must be rendered in  

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the negative.  Those who support use and administration of steroid do so  

with note of caution.  They in no uncertain terms state that the same should  

be used at a preliminary stage.  Respondents do not spell  out as to what  

would be the preliminary stage.  The preliminary stage must have started  

with the onset of the disease.  She had been suffering from skin rash from 3rd  

week of April, 1998.  It increased with the passage of time.  The cause of  

such eruption was not ascertained.  In fact what caused the onset of disease  

was not known.  It may be from Chinese food or it may even be from use of  

vitamin.   

On and from 7th May, 1998, she was prescribed injection Depomedrol  

twice a day and Wysolone.  It was continued upto 13th May, 1998, nobody  

even  thought  of  stopping  the  injection.   Dr.  Halder  although  stopped  

Depomedrol 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 patient was going from bad to worse.  It is agreed  

across the board and at least during trial, that supportive treatment should  

have been given.  The medicine was propagated which did not exist.  The  

medical literatures were not consulted.  Even for pulse therapy Depomedrol  

could not have been used and only Solumedrol could have been used.  Kunal  

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in his evidence explained the difference between the two.  Dr. Mukherjee in  

his deposition indirectly accepted the same.  Each of those pro-steroid group  

spoke of a single injection.  Nobody suggested on the face of the voluminous  

medical  literature  and  authoritative  opinions  of  the  experts  that  two  

injections daily could be prescribed by any prudent physician.  A great deed  

of  confusion  was  sought  to  be  created  between  one  kind  of  steroid  and  

another.  Vague questions were asked from the experts to show that steroids  

may be used but Dr. Pasricha stated that only a quick acting steroid should  

be used.  Depomedrol is not a quick acting steroid.

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 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 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

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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 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 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 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:-  

“Treatment:

2. According to our view, agreement should be used  on following for the treatment of TEN:

a. Treatment in burn units should be strived for  in  exceptional  cases  but  is  not  generally  necessary.

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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  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  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.  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  appropriately.  Fluid  replacement  regimens as used for burn patients.  

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  performed before disease activity ceases.  

3. Course and Prognosis:   The following factors 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  leading  to  

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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’ expertise in the field is neither in doubt  

nor  in  dispute,  particularly  when  both  parties  have  extensively  relied  

thereupon. Even the suspected offending drug was not withdrawn at later  

stages. This drug is considered to be a real risk for the patient suffering from  

TEN.   The  medicine  has  also  been  administered  having  regard  to  the  

physical condition of the patient.  They were required to be given only as a  

part of the total program.  We may also place on record that there has been a  

cleavage of opinion in regard to mortality rate.  Whereas according to the  

one group of experts in TEN patients when properly treated and in particular  

given  supportive  treatment,  the  mortality  rate  is  0-10%’  the  respondents  

contend that that in fact the mortality rate is quite high being 30-70%.   

We would assume that the mortality rate is very high.  If that be so,  

we feel that the doctors should have been more careful.  They should have  

treated the patient upon exercise of more care and caution.  For the said  

purpose,  if  they  had  not  been  able  to  diagnose  the  disease  properly  or  

identify the proper drug they would have undertaken some research.  It is  

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clear  that  they did not  have any expertise  in the field and therefore they  

ought not to have behaved as experts

We  are,  therefore,  of  the  opinion  that  the  universally  accepted  

medicated treatment protocol had also not been followed.  

It  is  also  to  be  noted  at  this  juncture,  that  there  may  well  be  a  

difference of opinion on the course of action to be adopted while treating a  

patient of TEN, but the treatment line followed by Dr. Mukherjee which  

entailed  administration  of  80  mg  of  Depomedrol  injection  twice  is  not  

supported by any school of thought. The treatment line, in this case, does not  

flow from any considered affinity to a particular school of thought, but out  

of sheer ignorance of basic hazards relating to use of steroids as also lack of  

judgment.  

C.4. BURDEN OF PROOF

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.  Udwadia  

(P.W.10)  and, Dr. Salil Kumar Bhattacharyya, P.W. 11.   

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.

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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 Spring Meadows Hospital  v. Harjol Ahluwalia, [(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 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 performing of his duties properly.”

However, in  Rattan Singh v.  State of Punjab,    [(1979) 4 SCC 719}  ,  

this Court has held :-  

“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  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  

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frequency of  rash driving of  heavy duty  vehicles  and of speeding menaces. Thus viewed, it is fair to  apply 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.”

In B. Nagabhushanam  v. State of Karnataka, [(2008) 5 SCC 730],this  

Court held as under :-  

“12. Reliance  placed  by  Mr  Kulkarni  on  Syad  Akbar v.  State  of  Karnataka1 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):

“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 before an accused can  be  convicted  on the  basis  of  circumstantial  evidence  alone.  These  are:  Firstly,  all  the  circumstances,  including  the  objective  circumstances constituting the accident, from  which the inference of guilt is to be drawn,  must  be firmly established. Secondly,  those  circumstances  must  be  of  a  determinative  tendency  pointing  unerringly  towards  the  guilt  of  the  accused.  Thirdly,  the  circumstances  should  make  a  chain  so  complete  that  they  cannot  reasonably  raise  

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any  other  hypothesis  save  that  of  the  accused’s guilt. That is to say, they should be  incompatible  with  his  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 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 :-                            

“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  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:

Once an allegation is  made that  the patient  was  admitted  in  a  particular  hospital  and  evidence is produced to satisfy that he died  because  of  lack  of  proper  care  and  negligence,  then  the  burden  lies  on  the  hospital  to  justify  that  there  was  no  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  

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administered to the patient. It is the duty of  the hospital to satisfy that there was 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  which has to justify and not  impleading  a  particular  doctor  will  not  absolve the hospital of its responsibilities.”

C.5. CONTRIBUTORY NEGLIGENCE  

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  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 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:-

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“Q.38  (Ld. complainant counsel sows the witness  Exbt.  8).   What  do  you  understand  by  this  line  “Fusys 200 mg. / weekly once”; - 3rd line from the  end?   Ans. Regarding  this  question  I  like  to  say  all  instructions for mediction in Exbt.  8 were carried  out by Dr. Kunal Saha but not by my nurses.  If I  can  not  understand  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 professional  

cannot  take this  plea.  Moreover,  the  same is  not  borne out  of  records  at  

AMRI. Even if we assume this statement 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 when an interference could also have been in the  

nature of suggestion.

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 National Commission are not backed by any evidence  

on record.  Even otherwise, keeping in view the specific defence raised by  

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them individually,  interference  by  Kunal,  so  far  as  they  are  concerned,  

would amount to hearsay evidence and not direct evidence.   

Dr. K. Nandy in his evidence stated that he was not allowed to change  

the dressings on 15th May and 16th May, 1998.  However, according to him,  

he forced his decision to do the dressing on 17th May, 1998 before she was  

taken away from the hospital.   

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  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  Breach  Candy  

Hospital, it had scrupulously been placed on 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’.   

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It is accepted that the elder brother of Kunal came to Mumbai on 17th  

May, 1998 itself.  He brought with him a new antibiotic named “Quinolone”  

which was not available in India.  He persuaded Dr. Udwadia to administer  

the said injection.  This discussion 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 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,  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 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.  

Respondents  also  sought  to  highlight  on  the  number  of  antibiotics  

which are said to have been administered by Kunal to Anuradha while she  

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was in AMRI contending that the said antibiotics were necessary. Kunal,  

however, submitted that the said antibiotics were prescribed by the doctors  

at AMRI and 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 agree that  

there was interference by Kunal Saha during the treatment,  it  in no way  

diminishes  the  primary  responsibility  and  default  in  duty  on  part  of  the  

defendants.  In  spite  of  a  possibility  of  him playing  an over-anxious  role  

during the medical proceedings, the breach of duty to take basic standard of  

medical  care  on  the  part  of  defendants  is  not  diluted.  To  that  extent,  

contributory negligence is not pertinent. It may, however, have some role to  

play for the purpose of damages.

C.6. NON-JOINDER OF NECESSARY PARTIES

Respondents contend that Dr. Kunal had been 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.  A.K. Ghoshal as also Breach Candy  

Hospital and doctors treating Anuradha at Bombay from 17th May, 1998 till  

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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 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 Rule 9 and Order 1 Rule 10 of  the CPC there also even 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  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.”

An argument has also been advanced that Anuradha was treated by as  

many  as  16  doctors  and,  thus,  there  was  no  reason  as  to  why  only  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 specifically found to be guilty of criminal misconduct or medical  

negligence or deficiency in service and not against all.  Apart from making a  

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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  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 treatment by any other doctor has contributed in  

any manner to the death of Anuradha.

Submissions have also been made at the bar that Kunal issued notices  

to a large number of persons but withdrew the 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  19  addresses.  Withdrawal  of  cases  against  some  of  them,  in  our  

opinion,  is  not  of  much  significance.   The  Directors  of  AMRI  were  

impleaded 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  grievance  

against the hospital was that they did not have any burn ward although he  

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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  

contributory factor although existence thereof was highly desirable keeping  

in view the treatment protocol.

We must  bear  in  mind  that  negligence  is  attributed  when  existing  

facilities are not availed of.  Medical negligence cannot be attributed for not  

rendering  a  facility  which  was not  available.  In  our  opinion,  if  hospitals  

knowingly  fail  to  provide  some  amenities  that  are  fundamental  for  the  

patients, it would certainly amount to medical malpractice. As it has been  

held in  Smt. Savita Garg (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 factor in denying the compensation for  

mental agony suffered by the parents.  The aforementioned principle applies  

to this case also in so far as it answers the contentions raised before us that  

the three senior doctors did not charge any professional fees.

In any event, keeping in view of the said decision, we are of the firm  

opinion that notices to a large number of persons and withdrawal of cases  

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against some of them by itself cannot be considered to be a relevant factor  

for dismissal of these appeals.

D. CIVIL LIABILITY UNDER TORT LAW AS ALSO UNDER  

CONSUMER PROTECTION ACT

In this case, we are concerned with the extent of 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.  We intend to deal with these questions separately.

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 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.  

Bearing  this  in  mind,  we  further  elaborate  on  both  the  questions  

separately.  

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D.1. LAW OF NEGLIGENCE UNDER TORT LAW  

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 & 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  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]

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 or ordinance or is contrary to the dictates of ordinary  

prudence.

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In  Bolam  v.  Friern Hospital Management Committee, [(1957) 2 All  

ER 118], the law was stated thus:

“Where you get a situation which involves the use  of  some  special  skill  or  competence,  then  the  test…..is  the  standard  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….

[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 practice,  merely  because there is a body of opinion which [takes] a  contrary view.”

It has been laid down that an ordinary skilled professional standard of  

care for determining the liability of medical 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. Ishfaq, [ (2009) 3 SCC 1],  

this  Court  laid  down the  precautions  which  doctors/hospitals  etc.  should  

have taken, in the following terms :-  

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

(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.

(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.

(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….”

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 [Ribl v. Hughes: (1980) 114 DLR 3d 1] and the United States and  

even in the 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 :-

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“ The  court  is  not  bound  to  hold  that  a  defendant  doctor  escapes  liability  for  negligent  treatment  or  diagnosis  just  because  he  leads  evidence from a number of medical  experts who  are  genuinely  of  opinion  that  the  defendant’s  treatment  or  diagnosis  accorded  with  sound  medical  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  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 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:  

(i) Mere  deviation  from normal  professional  practice  is  not  

necessarily evidence of negligence.

(ii) Mere accident is not evidence of negligence

(iii) An error of judgment on the part of a professional is not  

7negligence per se.

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(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.

RIGHT OF THE PATIENT TO BE INFORMED

The patients  by and large are ignorant about the disease or side or  

adverse affect  of  a medicine.   Ordinarily  the patients  are to be informed  

about the admitted risk, if any.  If some medicine has some adverse affect or  

some reaction is anticipated, he should be informed thereabout.  It was not  

done in the instant case.

In  Sidaway  v.  Board of Governors of Bethlem Royal 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 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 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  

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decide  whether  a  responsible  body  of  medical  opinion would have approved of non-disclosure in  the case before him.

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  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  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 duty to disclose to patients about the risks  

of serious side effects or about alternative treatments. 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  

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 Cal. Rptr. 505, 502 P.2d 1 (1972); Hamiltorn v. Hardy, 37 Colo.  

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App.  375,  549  P.2d  1099  (1976)].  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  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.  

D.2. TRANSPORTATION

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 correctness whereof, except for the words  

“for better treatment” is not in dispute.  Dr. Halder does not contend that the  

contents 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. Balram Prasad and/or any  

other 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  

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was done at the instance of Kunal, 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 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  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.   

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 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  

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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 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  

same, observed that the patient’s condition was worse than he anticipated.

D.3. LEGITIMATE EXPECTATION  

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 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  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 that Anuradha was suffering from  

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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 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 doctrine  

having regard to an implied nature of service which is to be rendered, in our  

opinion, would not be quite out of place.   

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 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 made by a doctor that he is a specialist and  

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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.

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 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 the doctors for treatment. …They charge  fee for the services rendered by them and they are  supposed to bestow the best care.”

D.4. INDIVIDUAL LIABILITY OF THE DOCTORS

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 is given by any doctor or surgeon that the patient  

would be cured.

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(ii) The  doctor,  however,  must  undertake  a  fair,  reasonable  and  

competent degree of skill, which may not be the highest skill.

(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,  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 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 his ability.

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 ought to have been  

taken and the deficiency whereof is being complained of in the criminal case  

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and  the  civil  case,  respectively,  so  far  as  respondent  Nos.  1  to  3  are  

concerned.

When Dr. Mukherjee examined Anuradha, she had rashes all over her  

body and this  being the case of 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 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 is a  

wrongful act on his part.  

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 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.  

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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 immunity of the patient and Dr. Mukherjee has failed to take note of the  

said consequences.

After taking over the treatment of the patient and detecting TEN, Dr.  

Halder ought to have necessarily verified the previous prescription that has  

been given to the patient.  On 12th May, 1998 although ‘depomedrol’ was  

stopped,  Dr.  Halder  did  not  take  any  remedial  measures  against  the  

excessive amount of ‘depomedrol’ that was already stuck in the patient’s  

body and added more fuel to the fire by prescribing a quick acting steroid  

‘Prednisolone’  at  40mg  three  times  daily,  which  is  an  excessive  dose,  

considering the fact that a huge amount of “Depomedrol” has been already  

accumulated in the body.  

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 performed regularly to detect the degree of infection.  

Apart  from  using  the  steroids,  aggressive  supportive  therapy  that  is  

considered  to  be rudimentary  for  TEN patients  was  not  provided by Dr.  

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Halder. Further ‘vital-signs’ of a patient such as temperature, pulse, 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 monitored regularly is certainly an act of negligence.   

Occlusive dressing were carried as a result of which the 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 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, 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.    

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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  between  

11.05.1998 to  16.05.1998 (Body Temperature,  Respiration Rate,  

pulse, BP and urine input and output)  

(ii)I.V. Fuid not administered. (I.V. fluid administration is absolutely  

necessary in the first 48 hours of treating TEN)

As regards, Dr. Balaram Prasad, Respondent 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, 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 failed to apply his own  

mind.

(iii)No  doctor  has  the  right  to  use  the  drug  beyond  the  maximum  

recommended dose.  

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So far as the judgment of the Commission is concerned, it was clearly  

wrong in opining that there was no negligence on the part of the hospital or  

the doctors.  We are, however, of the opinion, keeping in view the fact that  

Dr. Kaushik Nandy has done whatever was possible to be done and his line  

of treatment meets with the treatment protocol of one of the experts, viz.  

Prof. Jean Claude Roujeau although there may be otherwise difference of  

opinion, that he cannot be held to be guilty of negligence.

D.5. CONCLUSION  

We remit the case back to the Commission only for the purpose of  

determination of quantum of compensation.  

The  principles  of  determining  compensation  are  well-known.   We  

may place on record a few of them.

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 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.  

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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. 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  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/-

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.”

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 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 ].   

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When a death occurs the loss accruing to the dependent must be taken  

into account; the balance of loss and gain to him must be ascertained ; the  

position  of  each  dependent  in  each  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. Veluswami, [AIR 1962  

SC 1 ].  

Loss of wife to a husband may always be truly compensated by way  

of mandatory compensation.  How one would do it has been baffling the  

court  for a long time.  For compensating a husband for loss of his wife,  

therefore, courts consider the loss of income to the family.  It may not be  

difficult  to  do  when  she  had  been  earning.   Even  otherwise  a  wife’s  

contribution to the family  in terms of money can always be worked out.  

Every housewife makes contribution to his family.  It is capable of being  

measured on monetary terms although emotional aspect of it cannot be.  It  

depends  upon  her  educational  qualification,  her  own  upbringing,  status,  

husband’s income, etc.

This Court, we may notice, has laid down certain norms for grant of  

compensation for the death of members of family including the loss of child  

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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:

“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 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  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  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 able to walk, run or sit; (iii) damages for the  loss of expectation of life, i.e., on account of injury  the  normal  longevity  of  the  person concerned  is  shortened;  (iv)  inconvenience,  hardship,  discomfort, disappointment, frustration and mental  stress in life.”

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The Commission must, therefore, while arriving at the adequate  

compensation bear in mind all these relevant facts and circumstances.   

E. ASSESSING CRIMINAL CULPABILITY  

UNDER SECTION 304-A

E.1. CRIMINAL NEGLIGENCE UNDER SECTION 304-A

Criminal  Medical  Negligence  is  governed  by  Section  304A  of  the  

Indian Penal Code. Section 304-A of the Indian 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 extend to  two years, or with fine, or with both.”

Essential ingredients of Section 304-A are as under:-

(i) Death of a person

(ii) Death was caused by accused during any rash or negligence act.

(iii) Act does not amount to culpable homicide.

And to prove negligence under Criminal Law, the prosecution must  

prove:

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(i) The existence of duty.

(ii)A breach of the duty causing death.

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

negligence.   

[See R. v. Prentice and R v. Adomako: [1993] 4 All ER 935]

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.   

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.   

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 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.  

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The jurisprudential concept of negligence differs in civil and criminal  

law. What may be negligence in civil law may not necessarily be negligence  

in criminal law. For negligence to amount to an offence the element of mens  

rea must be shown to exist. For an act to amount to criminal negligence, the  

degree of negligence should be much high degree. A negligence which is not  

of  such a  high degree  may provide  a  ground for  action  in  civil  law but  

cannot form the basis for prosecution. To prosecute a medical professional  

for negligence under criminal law it  must  be shown that the accused did  

something  or  failed  to  do  something  which  in  the  given  facts  and  

circumstances no medical professional in his ordinary senses and prudence  

would have done or failed to do.

SHIFTING OF BLAME

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 to shirk their individual responsibilities.  We may in this behalf  

notice the following:

(i) In response to the notice of Dr. Kunal, Dr. Mukherjee says that  

Depomedrol had not been administered at all.  When confronted  

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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 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.

(iii) Dr.  Mukherjee  and  Dr.  Halder  have  shifted  the  blame to  Dr.  

Prasad and other doctors.  Whereas Dr. Prasad counter-charged  

the senior doctors including the respondent No. 2 stating:

“Prof.  B.N. Halder (Respondent No. 2)  was  so much 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…”

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 Mukherjee (Respondent No. 1), Dr. B.N.  Halder  (Respondent  No.  2)  and  Dr.  Abani  Roychowdhury (Respondent No. 3)”

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He furthermore stated that those three senior doctors 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 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  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:

“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  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 to disclose what care was taken  

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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 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 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 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 mudslinging.  This being a case where  

both sides being doctors, fair dealings were expected from them.    

CUMULATIVE EFFECT OF NEGLIGENCE  

A patient would feel  the deficiency in service having 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 view  

the cumulative effect.

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In the instant case, negligent action has been noticed with respect to  

more than one respondent. A cumulative incidence, therefore, has led to the  

death of the patient. It is to be noted that doctrine of cumulative effect is not  

available in criminal law. The complexities involved in the instant case as  

also differing nature of negligence exercised by various actors, make it very  

difficult to distil individual extent of negligence with respect to each of the  

respondent. In such a scenario finding of medical negligence under section  

304-A cannot be objectively determined.  

E.2. CONCLUSION

. In view of our discussions made hereinbefore, we are of the opinion  

that  for  the  death of  Anuradha  although Dr.  Mukherjee,  Dr.  Halder,  Dr.  

Abani  Roy Chowdhury,  AMRI,  Dr.  B.  Prasad were negligent,  the  extent  

thereof and keeping in view our observations made hereinbefore, it cannot  

be said that they should be held guilty for commission of an offence under  

Section 304-A of the Indian Penal Code.  We furthermore in a case of this  

nature do not intend to exercise our discretionary jurisdiction under Article  

136 of the Constitution of India having regard to the fact that a judgment of  

acquittal has been recorded by the Calcutta High Court.

F. OBSERVATIONS OF THE CALCUTTA HIGH COURT

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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 records, are also otherwise highly undesirable.

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 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 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:

“32. In this connection it is also to be mentioned  that the death certificate alone cannot rule out the  possibility  of  accidental  suicidal  or  homicidal  cause  of  the  death.  A  post-mortem  examination  alone could rule out the 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.”

128

….

“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.

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:

“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 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 (South)".  It  is  rightly contended by the learned counsel 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,

(ii)  The  police  investigation  could  unveil  some untold facts or circumstances leading to the  untimely death of Anuradha.

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Be that as it may, by filing a complaint for the  purpose  of  proving  the  rash  and  negligent  act  against  the  three  specialized  doctors,  the  complainant  party  intentionally  took  upon  themselves  a  heavy  burden  of  proving  the  case  which they actually failed to discharge. So it was  claimed  to  be  an  uneven  battle,  which  was  declared by the  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 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 must also express our great dissatisfaction when the 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 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  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 passed on  in  fees  to  the  patients.  Experienced  practitioners  

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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 involved. In the interests of all, we must  avoid  such  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 ..............".

Further  the  statement  made  by  the  High  Court  that  the  transfer  

certificate was forged by the patient party is absolutely erroneous, as Dr.  

Anil Kumar Gupta deposed before the trial court that  he saw the transfer  

certificate  at  AMRI’s  office  and  the  words  “for  better  treatment”  were  

written by Dr.Balaram Prasad in his presence and these words were written  

by Dr.Prasad, who told it would be easier for them to transport the patient.

In a case of this nature, Kunal would have expected sympathy and not a  

spate of irresponsible accusation from the High Court.

G. SUMMARY

For the reasons aforementioned, the criminal appeals are dismissed.  

As  regards  the  civil  appeal,  the  matter  is  remitted  to  the  National  

Commission for determining the compensation with a request to dispose of  

the matter as expeditiously as possible and preferably within a period of six  

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months from the date of receipt of a copy of this judgment.  Civil Appeal is  

disposed of accordingly.

We, keeping in view the stand taken and conduct of AMRI and Dr.  

Mukherjee,  direct  that  costs  of  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 examined it shall  

be done only through video conferencing and at the cost of respondents.

………………………….J. [S.B. Sinha]

..…………………………J.     [Deepak Verma]

New Delhi; August 07, 2009  

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