Calcutta High Court
Sukumar Mukherjee And Baidyanath ... vs Malay Kumar Ganguly And Anr. on 19 March, 2004
Equivalent citations: 2004(3)CHN187
JUDGMENT Gorachand De, J.
1. Professor (Dr.) Sukumar Mukherjee and Professor (Dr.) Baidyanath Halder were found guilty under Section 304A of the Indian Penal Code and each of them was sentenced to suffer simple imprisonment for three months and also to pay a fine of Rs. 3000/-, in default, to suffer further simple imprisonment for 15 days by the judgment and order dated 29.5.2002 passed by the learned Chief Judicial Magistrate, Alipore in Complaint Case No. C-3882 of 1998. The learned Magistrate, however, found professor (Dr..) Abani Roychowdhury not guilty under Section 304A of the Indian Penal Code and accordingly, acquitted him.
2. Against the said order, professor Mukherjee filed Criminal Appeal No. 55 of 2002 and professor Halder filed Criminal Appeal No. 54 of 2002 before the learned Sessions Judge at Alipore, whereas the complainant, Mr. Malay Kumar Ganguly, on the other hand, filed a revisional application being C.R.R. No. 1856 of 2002 for enhancement of the punishment inflicted upon professor Mukherjee and professor Halder. The complainant also filed another application under Section 378(4) of the Code of Criminal Procedure being CRM No. 3045 of 2002 praying for leave to appeal against the order of acquittal of professor Roychowdhury. This application was assigned to this Court and by an order dated 19.8.2002, the leave was granted to file the appeal. The appeal was actually filed on 29.8.2002. The said appeal was also assigned to this Court and by an order dated 3.10.2002 the appeal was admitted for hearing and numbered as C.R.A. No. 295 of 2002.
3. Meanwhile the complainant, Mr. Malay Kumar Ganguly filed two separate applications (CRR 22 of 2002 and CRR 23 of 2002) praying for transfer of both the appeals from the Sessions Court to this Court mainly on the ground that the application for enhancement of sentence and the appeal against acquittal were assigned to this Court for final decision.
4. After hearing the learned counsel of all the parties and keeping in view the nature of the case, problems involved and the law points indicated, both the appeals pending before the learned Sessions Court were directed to be transferred to this Court on 20.2.2003 by invoking power under Section 407 of the Code of Criminal Procedure, 1973. Accordingly, both the appeals were transferred to this Court and were re-numbered as CRA No. 83 of 2003 and CRA No. 84 of 2003.
5. Since all these four matters arose out of the judgment and order dated 29.5.2002 of the learned Chief Judicial Magistrate, on consent of the learned counsel of all the sides, those were taken for hearing one after the other. The learned counsel of all the sides argued the matter in accordance with the law one after the other and ultimately, concluded their respective argument. On completion of such argument, the learned Counsel of all the sides submitted their respective Written Notes of Argument to this Court. So by this judgment, all these four matters are going to be decided and accordingly, this judgment do govern the fate of all these four matters, namely, CRA No. 83 of 2003, CRA No. 84 of 2003, CRR No. 1856 of 2002 and CRA No. 295 of 2002.
6. One Malay Kumar Ganguly being the constituted attorney of Dr. Kunal Saha, at present a citizen of USA, filed a complaint before the learned Chief Judicial Magistrate, Alipore on 17.11.1998 alleging, inter alia, that his brother-in-law Dr. Kunal Saha with his wife, Anuradha Saha aged about 36 years came to Mumbai on 24.3.98 from USA and thereafter, reached Calcutta on 1st April, 1998 for attending the marriage ceremony of her brother. Anuradha @ Anu developed sore throat accompanied with low grade fever around 03.4.1998 and on 17th April, 1998, she developed high fever with some signs of upper respiratory track infection. Her blood was tested and report indicated possible viral infection. She developed fever on 25th April, 1998 followed by skin rash coming out for the first time on the 26th April, 1998 and such rash became bad to worse in the next two days for which her husband Dr. Kunal Saha contacted the accused No. 1, Dr. Sukumar Mukherjee who visited their residence on professional call and examined her and diagnosed the same as post-viral (measles-like) skin rash and prescribed some medicines. The skin rash subsided by 3rd (third) of May, 1998 and re-appeared on 4th May, 1998 in alarming proportions for which Dr. Sukumar Mukherjee was again contacted and on his advice, the patient was taken to his chamber on 7.5.1998 at Nightingle Diagnostic and Eye Care Research Centre, Calcutta. Dr. Mukherjee issued one prescription on the same day with his clinical findings and advised Depo-Medrol Injection 80 mg. IM, meaning Inter-Muscular, twice daily for three days with other medicines and the first injection of Depo-Medrol was administered on Anu by Dr. Mukherjee himself in his said chamber. Despite treatment the skin rash and Oedema became worse and mucous membrane of her mouth were affected with erruption. Dr. Mukherjee was contacted when he advised continuation of the same injection and to admit her to Advanced Medicare and Research Institute Limited at Calcutta (hereinafter referred to as 'AMRI' for brevity) on 11th May, 1998. Anuradha Saha was accordingly admitted in 'AMRI' in the morning of 11.5.1998 when the skin, of her whole back almost peeled off and the skin of the rest of the body was becoming fragile. Dr. Mukherjee attended Anuradha at 'AMRI' at 2-15 P.M. for the last time on 11.5.98 and strongly advised continuation of Depo-Medrol Injection at least for four days more and advised to consult the named Dermatologist, Dr. Baidyanath Halder (accused No. 2) and the named physician Dr. Abani Roychowdhury (accused No. 3). As per reference and advice of Dr. Mukherjee, Dr. Baidyanath Halder and Dr. Abani Roychowdhury took over the treatment of Anuradha Saha at AMRI on 12.5.98 when they diagnosed that she was attacked with Toxic Epidermal Necrolysis (in short 'TEN') and prescribed different medicines including Prednisolone 40 mg thrice daily without advicing any supporting medicine and appropriate medicare required in treatment protocol for TEN. Since the condition of Anuradha Saha deteriorated further at AMRI, the complainant and Dr. Kunal Saha tried to contact Dr. Sukumar Mukherjee at his residence, but to their shock and surprise, it was ascertained that he left for USA. Dr. Baidyanath Halder and Dr. Abani Roychowdhury also did not treat Anuradha following the treatment protocol for 'TEN' patients. Since the condition of Anuradha Saha deteriorated on 17.5.1998, she was taken to Mumbai by exclusive Chartered Flight for 'better treatment' and was admitted at Breach Candy Hospital on 17.5.98 in the night. Dr. Baidyanath Halder, however, issued necessary certificate dated 16.5.1998 for this purpose. It is alleged that by reason of administration of so much corticosteroid Depo-Medrol and Prednisolone from the 7th May, 1998 to 17th May, 1998 Anuradha lost all her immunity to fight out bacteria and became Immuno Suppressed, Anuradha ultimately died at Breach Candy Hospital on 28th May, 1998 from Speticemic Shock with multisystem organ failure in a case of Toxic Epidermal Necrolysis leading to cardio-respiratory arrest. It is alleged that the accused persons caused the death of Anuradha by doing rash and negligent act not amounting to culpable homicide.
7. On receipt of the complaint, the learned Chief Judicial Magistrate, Alipore on perusal of the complaint and considering the statements made by the complainant, Malay Kumar Ganguly and Dr. Kunal Saha passed an order on 17.11.1998 directing issuance of bailable warrant of arrest against the three accused doctors. The said order was, however, challenged before this Court and by an order passed in C. R. R. No. 2601 of 1998 further proceeding of the complaint case was stayed. Meanwhile on 29.5.1999, Dr. Baidyanath Halder and Dr. Sukumar Mukherjee surrendered before the learned Chief Judicial Magistrate along with the final order of C. R. R. No. 2601 of 1998 and both of them were released on bail. On receipt of the official copy of the judgment in C. R. R. No. 2601 of 1998, the case against Dr. Abani Roychowdhury was dropped. On 06.11.1999 Dr. Abani Roychowdhury also appeared before the learned Chief Judicial Magistrate in terms of the direction issued by the Hon'ble Supreme Court of India in Crl. Appeal No. 1109 of 1999. The Hon'ble Supreme Court set aside the order of this Court in respect of Dr. Abani Roychowdhury and directed to proceed with the case against him also. Dr. Roychowdhury was also enlarged on bail. Subsequently orders passed in C. R. R. No. 59 of 2000 and C. R. R. No. 60 of 2000 were received by the learned Chief Judicial Magistrate by which directions were given to the Trial Court for representation of the accused persons through their learned lawyers under Section 205 of the Code of Criminal Procedure with a further direction that they should make them available on the date of examination under Section 313 and also on the date of judgment.
8. All the three accused persons were examined under Section 251 Of the Cr.PC on 19.7.2000 for an offence under Section 304A of the Indian Penal Code. All the three accused persons pleaded 'not guilty' and claimed to be tried. Separate prayers were also made for stay of further proceeding of the complaint case till the disposal of other proceedings pending in different fora, namely, National Consumer Disputes Redressal Commission in O.P. No. 240 of 1999 and the disciplinary proceeding before the West Bengal Medical Council. After a contested hearing, all the applications for stay were rejected and evidence in the case was started from 20.11.2000.
9. Altogether eleven witnesses were examined on behalf of the complainant. After the examination of the accused persons under Section 313 of the Code of Criminal Procedure, three defence witnesses were also examined. The defence case as can be ascertained from the trend of answers given by the accused persons while examined under Section 313 of the Cr.PC and also from the evidence adduced by the defence witnesses and the trend of cross-examination of the witnesses examined on behalf of the complainant is that Dr. Sukumar Mukherjee did not treat the patient after 11th May, 1998 and Dr. Baidyanath Halder simply examined the patient only on 12th May, 1998, but his advice was not followed, and that Dr. Abani Roychowdhury never participated in the treatment of Anuradha Saha. It is also indicated that the three accused persons practically had no role to play in the actual treatment of Anuradha Saha and that the husband of Anuradha, namely, Dr. Kunal Saha and his friends took the entire decision of treatment including the shifting of Anuradha Saha to Breach Candy Hospital by a chartered flight on 17.5.1998. It is also alleged that for the purpose of safe journey by a chartered plane, a certificate to that effect was obtained from Dr. Baidyanath Halder. But subsequently, some other interpolations were made in the certificate indicating that the shifting was done 'for better treatment' of Anuradha. It is also indicated that the accused persons had no role to play in the death of Anuradha and that they were neither rash nor negligent in the treatment nor they were responsible for the death.
10. The learned Chief Judicial Magistrate after considering the evidence adduced and also relying on different text books and the circumstances, came to a conclusion that Dr. Sukumar Mukherjee and Dr. Baidyanath Halder were responsible for the death of Anuradha Saha for which they were found guilty under Section 304A of the Indian Penal Code and were convicted thereunder and sentenced in the manner indicated hereinabove. However, the learned Chief Judicial Magistrate considered that Dr. Abani Roychowdhury had no role to play in the treatment of Anuradha Saha for which he was found not guilty and was acquitted. Accordingly, the two convicted doctors preferred two separate appeals. On the other hand, the complainant filed the revision case for enhancement of the sentence of the two convicted doctors. He also filed the criminal appeal for setting aside the order of acquittal against Dr. Abani Roychowdhury. It is already indicated above that in all these cases, the main question is whether or not the accused doctors caused the death of Anuradha by doing any rash or negligent act not amounting to culpable homicide. For the purpose of Section 304A of the IPC, it is necessary to find out whether the rash and negligent act of the accused doctors are the direct and proximate cause of the death of Anuradha Saha. The section deals with homicide by negligence. So before entering into details of this case, I deem it proper to reproduce the questions put to the accused persons in course of their examination under Section 251 of the Code of Criminal Procedure.
"Examination of Dr. Sukumar Mukherjee under Section 251 Cr.PC through his ld. Advocate Sri Prasanta Banerjee, Q. That you Dr. Sukumar Mukherjee, between 7.5.98 and 12.5.98 at AMRI, Calcutta in the district of South 24-Parganas caused the death of Anuradha Saha W/o Dr. Kunal Saha by doing a rash and negligent act not amounting to culpable homicide, to wit, by advising, prescribing and treating the deceased with steroid drugs viz., Depo-Medrol Injection 80 mg. IM, stat and twice daily and other drugs, in improper dosage and at improper intervals, without any supportive medicine or medicare, and thereby committed an offence punishable under Section 304A IPC and within my cognizance. Do you plead guilty or have you any defence to make ?
Ans. Not guilty.
Sd/- Prasanta Banerjee Advocate.
19.7.2000.
Sd/- Illegible Chief Judicial Magistrate.
South 24-Parganas, Alipore.
Examination of Dr. B. Halder @ Baidyanath Halder under Section 251 Cr.PC through his ld. Advocate Sri Prasanta Banerjee.
Q. That you Dr. B. Halder @ Baidyanath Halder, between 12.5.98 and 17.5.98 at AMRI, CALCUTTA in the district of South 24-Parganas, caused the death of Anuradha Sana, W/o Dr. Kunal Saha, by doing a rash and negligent act not amounting to culpable homicide, to wit, by prescribing and treating the deceased with steroid drugs, viz., Prednisolone 40 mg. thrice daily, in improper dosage and at improper intervals, and thereby committed an offence punishable under Section 304A IPC and within my cognizance. Do you plead guilty or have you any defence to make ?
Ans. Not guilty.
Sd/- Prasanta Banerjee Advocate.
19.7.2000.
Sd/- Illegible Chief Judicial Magistrate.
South 24-Parganas, Alipore.
19.7.2000.
Examination of Dr. Abani Roychowdhury under Section 251 Cr.PC through his ld. Advocate Sri Prasanta Banerjee. dt.19.7.2000.
Q. That you Dr. Abani Roychowdhury, between 12.5.98 and 17.5.98 at AMRI, Calcutta in the district of South 24-Parganas, caused the death of Anuradha Saha, W/o Dr. Kunal Saha, by doing a rash and negligent act not amounting to culpable homicide, to wit, by advising treatment of the deceased with steroid drugs, viz., Prednisolone 40 mg. thrice daily, in improper dosage and at improper intervals, and thereby committed an offence punishable under Section 304A IPC and within my cognizance. Do you plead guilty or have you any defence to make ?
Ans. Not guilty.
Sd/- Prasanta Banerjee Advocate.
19.7.2000.
Sd/- Illegible Chief Judicial Magistrate.
South 24-Parganas, Alipore.
11. It is to be pointed out that all the three accused persons on the date of their examination under Section 251 of the Cr.PC on 19.7.2000 were allowed to be represented through their learned advocate, Shri Prasanta Banerjee under Section 205 of the Criminal Procedure Code and the said learned advocate pleaded not guilty for each of the accused persons and claimed to be tried as transpires from the order dated 19.7.2000 of the learned Chief Judicial Magistrate.
12. So the substance of accusation against Dr. Sukumar Mukherjee is that he caused the death of Anuradha Saha by doing a rash and negligent act not amounting to culpable homicide namely by advising, prescribing and treating the deceased with steroid drugs, viz., Depo-Medrol 80 Mg., IM, Stat and twice daily and other drugs in improper dosage and at improper interval without any supportive medicine or medicare.
13. Against Dr. Baidyanath Halder also, the similar allegation of rash and negligent act, namely, by prescribing and treating the deceased with steroid drugs, viz., Prednisolone 40 mg. thrice daily in improper dosage and at improper interval was put. Against Dr. Abani Roychowdhury also such rash and negligent act, namely, by advising treatment of the deceased with steroid, viz., Prednisolone 40 mg. thrice daily in improper dosage and at improper intervals was alleged.
14. The substance of accusation stated to the accused persons in terms of the provision of Section 251 of the Cr.PC is mandatory inasmuch as in summons case no charge is framed. So a duty is cast upon the Magistrate to state to each of the accused persons, the particulars of the offences so that they know the charge they are required to meet. The particulars of the offence as reproduced hereinabove show what were those particulars which the accused persons are to meet. Or, in other words, the complainant took upon himself the task of proving those particulars against each of the accused persons. It is needless to mention that in a criminal case of this nature, the onus is on the prosecution/ complainant to prove the particulars beyond all reasonable doubt. Practically the defence has no role to play in the discharge of such onus. In case of trial of summons cases by Magistrate under Chapter XX of the Code of Criminal Procedure, the Magistrate under Section 254 of the Code is required to proceed to hear the prosecution first and take all such evidence as may be produced in support of the prosecution. So after conclusion of the evidence produced by the prosecution the Magistrate is required to hear the accused and to take all such evidence as the accused persons produced in their defence. It is needless to mention that under Section 259 of the Code the trying Magistrate has the power to convert summons cases into warrant cases in the interest of justice. Such power can be exercised in course of the trial of a summons case relating to an offence punishable with imprisonment for a term exceeding six months. As soon as a summons case of such nature is converted into warrant case the offence is required to be tried in accordance with the procedure for the trial of warrant cases and the Magistrate thereby proceeds to re-hear the case in the manner provided by the Court for the trial of warrant cases and may recall any witness who may have been examined. But in the present case, Section 304A of the Indian Penal Code though relates to an offence punishable with imprisonment for two years, no attempt was made to convert the summons case into a warrant case, nor the learned Magistrate considered that in the interest of justice warrant procedure was to be followed in a case of this nature. Needless to mention that as soon as a summons case is converted into a warrant case under Section 259 of the Code, the accused persons get a better chance to defend themselves. Be that as it may, the trial proceeded following the procedure in trial of summons cases by Magistrate. Accordingly the question of getting a better chance to defend the accused persons did not arise. In fact the prosecution took upon itself the sole responsibility to prove the case against all the three accused persons.
15. In course of hearing of argument of these cases before this Court as well as in the judgment of the Trial Court, the duties of the treating doctors were highlighted. Attempts were also made to point out the 'dos' and 'donts' of a treating doctor. Quotations from different text books, Sanskrit Literatures and Journals were also given -- only with a view to show that if the three accused persons were cautious enough the untimely death of a 36-years old married lady could have been stopped. But for the purpose of trial of a criminal case of this nature it is incumbent upon the Court to find out as to how far the prosecution has been able to prove the offence alleged against the accused persons. In a criminal trial the entire case is to be decided on the basis of the evidence adduced by the parties specially the prosecution. So there is little scope of taking into consideration other extraneous factors.
16. But before entering into the evidentiary part of this case, it would not be out of place to mention that the instant case got wide publicity as it was first of its kind in the judicial arena of this country and secondly, the complaint was filed against three eminent doctors who were also professors of the medical colleges of this State at different points of time. Moreover from the very initial stage the parties opted to move the higher judicial forum for relief. But ultimately it was decided to proceed against the three accused persons in accordance with law for which all these three doctors were examined under Section 251 of the Code of Criminal Procedure. But it was rightly pointed out by the learned counsel for the appellant that though the pressure of the case prompted the learned Chief Judicial Magistrate to issue warrant of arrest against all the three accused persons, but no attempt was made to convert the summons case into a warrant case. It appeals from the order dated 17.11.1998 passed by the learned Chief Judicial Magistrate that after initial examination of the complainant, Dr. Kunal Saha and Dr, Anil Kumar Gupta, the learned Magistrate found out a prima facie case under Section 304A of the Indian Penal Code against all the three accused persons and accordingly, issued warrant of arrest with bail of Rs. 500/- each. But surprisingly enough under Section 204(1) of the Cr.PC, if the Magistrate taking cognizance of an offence finds out sufficient ground for proceeding and the case appears to be a summons case, he shall issue his summons for the attendance of the accused persons. But under Section 204(5), the learned Magistrate was authorised to issue warrant of arrest in lieu of or in addition to, summons following the provisions of Section 87 of the Code of Criminal Procedure. In doing so, the learned Magistrate is required to record his reason in writing before issuance of warrant of arrest in lieu of or in addition to summons. But surprisingly enough, there is nothing in the order dated 17.11.1998 of the learned Magistrate that he recorded its reasons in writing before issuing warrant of arrest in lieu of summons against the accused doctors. This issuance of warrant of arrest without assigning any reason sufficiently indicates how from the very beginning, Courts were placed under pressure. This action on the part of the learned Magistrate was against the mandatory provision of law. The Apex Court in JT 2000 (Suppl. 1) SC 278 (Maninder Kaur and Ors. v. Teja Singh) also disapproved such an action. Moreover it was not at all considered that three renowned professors of this State could have been manhandled on the basis of such warrant of arrest.
Practically this situation was taken care of by this Hon'ble Court which directed Dr. Sukumar Mukherjee and Dr. Baidyanath Halder to surrender before the Trial Court within three weeks and directed the Trial Court to consider favourably the question of their bail as well as their prayer for exemption from personal appearance. This Court also set aside the order of issuing process against Dr. Abani Roychowdhury. But ultimately the Apex Court set aside that order and directed Dr. Roychowdhury to surrender before the Trial Court. At the risk of repetition, I like to mention that a Criminal Court is to proceed with a case in accordance with law ignoring the force or pressure or other extraneous considerations. So let it be considered how far the complainant has been able to prove the offence punishable under Section 304A of the Indian Penal Code against each of the three accused doctors.
17. From the evidence of the witnesses produced on behalf of the complainant, it is to be noted that P.W, 1, Malay Kumar Ganguly is the complainant and Anuradha Saha (in few of the records, she is shown as Anuradha Roy Saha) was his sister-in-law. The P.W. 2, Dr. Kunal Saha was the husband of Anuradha and the P.W. 1 has stated that he filed the complaint under the instruction of Dr. Kunal Saha. The P.W. 3, Dr. Balaram Prasad under whose care Anuradha Saha was admitted at AMRI, was a friend of Dr. Kunal Saha. The P.W. 4, Dr. Alok Kumar Majumdar and P.W. 5, Dr. Anil Kumar Gupta were also friends of Dr. Kunal Saha. Practically the treatment particulars of Anuradha Saha at Calcutta were tried to be proved through these five witnesses. Of course the P.W. 7, Sub-Inspector Prosenjit Bhattacharyya of Calcutta Police on execution of a search warrant issued by the Trial Court seized the Bed Head Ticket in the name of Anuradha Roy (Saha) and other papers from AMRI. The P.W. 6, Dr. Asok Kumar Chowdhury was the President of the West Bengal Medical Council and P.W. 9, Shri Dilip Kumar Ghosh is the Registrar of West Bengal Medical Council. The P.W. 8, Dr. Anil Shinde is the Manager of Pharmacia India Pvt. Ltd. (previously known as Pharmacia & Upjohn). The medicine Depo-Medrol is the product of this Pharmacia & Upjohn. He deposed about the composition and normal dose of Depo-Medrol. Similarly, the P.W. 11, Dr. Salil Kumar Bhattacharyya, Professor of Pharmacology, Institute of Medical Science, Benaras Hindu University deposed, analysing the uses and effect of Depo-Medrol and also pointed out the necessity to follow the "produce brochures and Manufacturer's Instructions". The only doctor who deposed about the treatment of Anuradha Saha from 17.5.98 till her death on 28th May, 1998 at Breach Candy Hospital is Dr. Farokh E. Udwadia (P.W. 10).
18. So for the purpose of treatment of Anuradha Saha at Calcutta the prosecution had to depend on the evidence of P.W. 1, P.W. 2, P.W. 3, P.W. 4 and P.W. 5 and the documents produced by P.W. 7 from AMRI.
19. From the evidence of P.W. 1 to P.W. 5, I hold and conclude that the following facts have been proved beyond all reasonable doubt:
(i) Dr. Kunal Saha became a graduate in Medicine (MBBS) from N.R.S. Medical College and Hospital in 1982-1983 and migrated to United States in 1985. He became US citizen. Most of his family members including his mother, brothers and sisters are permanently settled in USA. He completed his Ph.D. in 1993 from the University of Texus and on the day of his deposition on 27th June, 2001, he was a Faculty Member of HIV and AIDS at Ohio State University Medical Centre.
(ii) Dr. Kunal Saha with his wife Anuradha Saha @ Anu came to Calcutta on 1st April, 1998 for attending the marriage ceremony of Anuradha's brother, Arunava Roy and started staying at her parental house at 38N, New Ballygung Road, Kasba.
(iii) On arrival at Calcutta Anuradha developed sore throat which went from bad to worse with some palpable neck glands over the next couple of days accompanied by low grade fever around 3.4.98 (paragraph 5 of the complaint). But that was cured (initial examination of Dr. Kunal Saha under Section 200 Cr.PC).
(iv) On 17th April, 1998, Anuradha again had a sore throat, cold and cough with high fever (above 102). Her blood was tested and report indicated possible viral infection (paragraph 6 of the complaint). But the cold and cough was cured (statement of Dr. Kunal Saha under Section 200 Cr.PC).
(v) On 25.4.1998, Anuradha again had fever along with rashes or skin eruptions on her body. Dr. Kunal Saha contacted Dr. Sukumar Mukherjee who personally came to examine Anuradha at her parental house on 26th April, 1998. But did not prescribe any specific medicine (examination-in-chief of Dr. Kunal Saha as P.W. 2). Her skin rashes subsided in the next few days.
(vi) On 4.5.1998, the skin rash re-appeared in a much-more prominent manner for which Dr. Kunal Saha contacted Dr. Sukumar Mukherjee again and at his direction, Anuradha was taken to his chamber at Nightingale Diagnostic Centre on 7th May, 1998. Dr. Sukumar Mukherjee after examining Anuradha wrote a prescription (Ext.2) and gave an inter-muscular injection of Depo-Medrol 80 Mg.
(vii) Since the condition of Anuradha deteriorated, decision was taken to admit her to AMRI.
(viii) In the morning (about 12 noon) of 11th May, 1998 Anuradha was admitted to AMRI under Dr. Balaram Prasad.
(ix) At 2-15 P.M., Dr. Sukumar Mukherjee examined Anuradha and wrote a prescription (part of Ext.3) with certain advice, namely, to consult one Dermatologist and requested Dr. Abani Roychowdhury to see her. Advice was also given to Dr. Balaram Prasad to arrange for eye and dermatological check-up.
(x) On 11.5.1998, Dr. Balaram Prasad referred Anuradha to Dr. A.K. Ghosal and Dr. A.K. Ghosal diagnosed the same as Toxic Epidermal Necrolysis (TEN).
(xi) On 12.5.1998, professor (Dr.) Baidyanath Halder on request of Dr. Prasad agreed to examine the patient and after examination wrote a prescription.
(xii) On 12.5.1998, Dr. Balaram Prasad requested Dr. Abani Roychowdhury to examine the patient and to give valuable opinion. He also referred the patient to Dr. Sovan Bhattacharyya (Opthalmologist) for eye check-up.
(xiii) On 13.5.1998, he also referred the patient to Dr. Purnima Chatterjee (Gynaecologist) and also referred her to Dr. K. Ahmed (ENT) for reference.
(xiv) On 16.5.1998, Dr. B. Prasad requested ICCU, RMO for IV Cannulation, if required.
(xv) On 17.5.1998, Malay Kumar Ganguly (the complainant) made the endorsement on the AMRI record : "I am taking my patient at my own risk" and actually removed her by a Chartered Flight to Breach Candy Hospital, Mumbai.
(xvi) Anuradha was admitted at Breach Candy Hospital on 17.5.1998 at 9-20 P.M. under Dr. Keshwani, a Plastic Surgeon and she was treated by Dr. Farokh E. Udwadia, a consultant Physician of that Hospital who first saw her in the morning of 18.5.1998.
(xvii) Since the admission at Breach Candy Hospital on 17.5.1998 till 6-00 P.M. of 18.5.1998, Anuradha was kept in the General Ward.
(xviii) From 6-00 P.M. on 18.5.1998 till the morning of 28.5.1998, she was kept in a separate Cabin in the seventh floor of Breach Candy Hospital.
(xix) Dr. Udwadia was on leave from 9-00 P.M. on 27.5.1998 and Dr. J. D. Sunawala and Dr. M. Jain were directed to look after the patient.
(xx) On 28.5.1998 at 6-30 A.M., Anuradha was shifted to Intensive Care Unit (ICU). There she had Cardiac Arrest at 2-00 P.M. and was resuscitated. But unfortunately, 2-3 similar episodes occurred in the next 2-3 hours and finally, all efforts at resuscitation failed and she expired at 6-00 P.M. Dr. A. Desai for Dr. J. D. Sunawala wrote : "Cause of death was primarily due to severe Septicemic Shock with Multi System Organ Failure" (page 341 of volume IV of the paper book).
(xxi) In the Death Certificate (page 1 of volume IV of the paper book) the final cause of death is written as "Septicemic Shock with Multi System Organ Failure in a case of Toxic Epidermal Necrolysis leading to Cardio Respiratory Arrest". The same cause is also indicated in the Medical Certificate issued by the Public Health Department of Mumbai in Form No. 8 under Rule 8 of the Maharastra Registration of Births and Deaths Rules, 1976 (page 2 of volume IV of the paper book).
20. So from the above analysis, it is proved that Anuradha developed sore throat with low grade fever and neck glands around 3.4.199.8 after arrival to Calcutta on 1st April, 1998. But it subsided. On 17.4.1998, she again had a sore throat, cold and cough with fever. The blood test indicated possible viral infection. However, the cold and cough was cured. On 25.4.1998, Anuradha again had fever along with rashes and skin eruptions. Dr. Kunal Saha contacted Dr. Sukumar Mukherjee who saw Anuradha at her paternal house on 26.4.1998, but did not prescribe any specific medicine. On this occasion also the skin rashes subsided in the next few days. But from 4.5.1998 the skin rash reappeared in a much-more prominent manner when Dr. Kunal Saha contacted Dr. Sukumar Mukherjee and at his direction Anuradha was taken to his chamber at Nightingale Diagnostic Centre on 7.5.1998 on which date Depo-Medrol 80 mg. IM injection was administered on Anuradha after writing a prescription. Since the condition of Anuradha deteriorated she was admitted at AMRI on 11.5.1998. These facts are reiterated only for pointing out that since 3.4.1998 till 6.5.1998, Anuradha was treated, but not by any of the accused doctor. It is claimed by the prosecution that from 7.5.1998 till her admission at AMRI on 11.5.1998 she was under the treatment of Dr. Sukumar Mukherjee. Dr. Sukumar Mukherjee wrote a prescription at AMRI on 11,5.1998 at 2-15 P.M. and left for USA in connection with an International Conference in USA. Anuradha was actually admitted under Dr. Balaram Prasad and upto 17.5.1998 she was treated at AMRI. The complainant Malay Kumar Ganguly took release of the patient at his own risk on 17.5.1998 and she was taken to Breach Candy Hospital where she was admitted at 9-00 P.M. on that date. But she was declared dead at 6-00 P.M. on 28.5.1998. The cause of death as indicated hereinabove is "Septicemic Shock with Multi System Organ Failure in a case of Toxic Epidermal Necrolysis leading to Cardio Respiratory Arrest".
21. As regards the cause of death, Dr. Udwadia (P.W. 10) stated that she died of Sepsis, Septic shock and multiple organ failure. Then he was asked whether any post-mortem done at Breach Candy Hospital after Anuradha's death. The answer Was negative. Then he was asked -
"Q: Should post-mortem be performed at Breach Candy Hospital after Anuradha's death ?
A: If the cause of death is a natural cause or the cause is quite obvious, it is not incumbent to do so unless their relatives asked for that. I was not there at the time of death. But I gathered that the relatives were keen to get the, body as quickly as possible.
Q : Is the treatment at Breach Candy Hospital, in any way, responsible for the death of Anuradha Saha ?
A : No. As I have already mentioned we tried to save her life. I had a senior Registrar in constant attendance. I had a house physician entirely devoted to her, we had made our room as MINI Intensive Care Unit as far as possible. We only shifted her to regular ICU when she needed ventilatory support, I used to see her at least three times a day, was in constant communication with the House Staff looking after her and as my custom for treating doctors or their wives or their children or their parents from the very start of my professional career, I did not levy any single paise as my professional fee. It was, however, a heart-rending to see young lady die".
22. It is pertinent to mention that none of the prosecution witnesses ever claimed that the three accused doctors ever levied any professional fees. On the other hand, the specific claim of the doctors is that they never claimed any fees for rendering any professional advice in connection with the treatment of Anuradha. It appears from the complaint filed before the Hon'ble National Consumer Disputes Redressal Commission that Dr. Kunal Saha claimed a compensation of Rs. 77,07,45,000.00/- (seventy seven crores seven lakhs forty five thousand) which included an amount of 23 lakhs towards the medical treatment in Calcutta and Mumbai. Though in the said complaint the claim is preferred against the three accused doctors and all the directors of the AMRI; neither the Breach Candy Hospital nor any of the doctors there were made a party, nor any claim was preferred against them. But in course of argument, it was contended that steps were taken for preferring claim against Breach Candy Hospital also.
23. Be that as it may, it is sufficiently clear that post-mortem examination was not done after the death of Anuradha. The P.W. 1, Malay Kumar Ganguly is completely silent on the point of post-mortem examination. The P.W. 2, Dr. Kunal Saha though claimed that "Anu died because of medical malpractice. The three accused persons in this case are responsible for Anu's death", but the P.W. 2 also remained completely silent about the post-mortem examination. None of the prosecution witnesses also threw any light on this point. So the fact remains that there was no post-mortem examination on the dead body of Anu to ascertain the cause of death. On the other hand, the view of Dr. Udwadia (P.W. 10) is "if the cause of death is a natural cause or the cause is quite obvious, it is not incumbent to do so unless their relatives asked for that". It is also claimed by P.W. 10 that he was not present at the time of death and he gathered that the relatives of the patient were keen to get the body as quickly as possible. It is not clarified on behalf of the prosecution as to why the relatives were so much keen to get the body so quickly.
24. From the evidence on record, it appears that the relatives did not ask for the post-mortem examination and they were keen to get the body as quickly as possible. On the other hand, it is not incumbent upon the hospital authority to do the post-mortem examination if the cause of death is a natural cause or the cause is quite obvious. This means that the cause of death of Anuradha was construed to be a natural cause or the cause was quite obvious. It is already indicated above that the allegation against the three doctors is that they caused the death of Anuradha by doing rash or negligent act not amounting to culpable homicide within the meaning of Section 304A of the Indian Penal Code. The side note of Section 304A is "causing death by negligence". Or in other words, death should have been the direct result of a rash and negligent act of the accused doctors, and that act must be the proximate and efficient cause without the intervention of another's negligence. It must be the causa causans, it is not enough that it may have been the causa sine qua non. Such a view of the different High Courts of this country was approved by the Supreme Court in Kurban Hossain Mohammad Rangawalla v. State of Maharashtra, . Actually, the Supreme Court adopted the interpretation of the section as done by Sir Lawrence Jenkins J. in Emperor v. Onkar Ram Pratap, 4 Bombay LR 679.
25. In Osborn's Concise Law Dictionary, 7th Edition, page 65, the expression 'causa causans' means "the intermediate cause : the last link in the chain of causation. It is to be distinguished from the causa sine qua non which means some preceding link but for which the causa causans could not have become operative. Before further elucidation on this points it is to be pointed out that the death certificate issued in this case is merely tentative, and has not proved the cause of death beyond reasonable doubt. The death certificate is significantly silent about the antecedent cause or other significant condition contributing to the death but not related to the disease condition or condition causing it. So it is rightly argued on behalf of the accused doctors that the death certificate does not, in any way, connect the treatment at Calcutta with the death of the patient. Had there be any post-mortem examination of the patient, the cause of death would have been established beyond reasonable doubt. But the behest of the patient party prevented the best evidence related to the cause of death of the victim to be elicited and produced before the Trial Court.
26. In this connection, it is once again pointed out that the victim was treated at AMRI for six days and at Breach Candy Hospital for twelve days. It is also on evidence that the patient party opted to take the patient to Breach Candy Hospital at their own risk after taking a discharge from AMRI. The treatment chart of Anuradha at Breach Candy Hospital (Ext. 16) clearly shows that the ultimate demise of Anuradha cannot, by any stretch of imagination, be attributed to the treatment at AMRI but was a prognosis of the disease itself. The P.W.2, Dr. Kunal Saha sought to potray that "Anu was in moribund or almost dead on 17.5.1998 when she was taken to Breach Candy Hospital." But this claim does not appear from the records of the Breach Candy Hospital nor from the deposition of Dr. Udwadia (P.W.10).
"Q: Would you consider Anuradha as moribund and at a point of 'no-return' at that stage?
A: No. Not at the time of admission. We fought day and night to help salvage her, knowing full well that the odds were against us. It was around the 27th May, 1998, though we continued to try, we felt that the end was inevitable.
Q: Could anything be done other than what was already done by the Breach Candy Hospital to save the life of Anuradha at that stage?
A: No. In fact, the treatment of TEN is solely supportive. There is no proven specific treatment. This goes for corticosteroids as well and in the year 1998 this goes for all other modalities, example - Plusmapheresis, use of Immonoglobuline, use of Thalidomide. It is a rare disease (TEN) one in a million and at least till 1998, there was no controlled, raodomised series that could prove whether any specific treatment was clearly effective."
Dr. Udwadia further continued that the green discharge from the denuded areas denoted invariable a gram negative infection generally due to Pseudomonas (page 296 of Part I, Vol. I of the paper book). He further deposed:
"Q ; Is this a sign of gross contamination or infection?
A : I would say that it is a sign of infection.
Q : Was the patient already infected in Calcutta ?
(objected to) A : I cannot answer that. But in Bombay the wounds were infected. Q : Was she already infected on admission at Breach Candy ?
A : The dressings were done on the day of admission. She was admitted on 17th May, 1998 at night and the dressings were done on the 18th in the afternoon.
Q : Can infection occur between admission at 17th May, 1998 and 18th May, 1998 afternoon when she was dressed?
A: It is impossible to answer that with certainty. But in all probability, she was infected at the time of her admission".
In cross-examination Dr. Udwadia further stated--
"Q : Dr. Udwadia, I suggest to you that the disease TEN itself causes septicemia.
A : It is not the cause of septicemia, but it pre-disposes to septicemia because of large raw wounds.
Q : I suggest that the disease TEN gives rise to the large raw wounds. A : Yes.
Q : I refer here certain factors for sepsis such as Therapeutic Intervention, hospital micro-environment, transportation of patient from Calcutta to Bombay and unhygenic handling of patient in transport or in transit. What is your opinion ?
A : Any medical invasive intervention carries a small risk of infection besides others. It has to be done meticulously and in the Operation Theatre by skilled individuals ............. transportation from Calcutta to Bombay could cause great hazards unless it was done in appropriate manner. Unhygenic handling is covered by the last answer."
At the close Dr. Udwadia further clarified that the hospital would have conducted the post-mortem examination of Anuradha if there was necessity on the part of the relations or husband of Anuradha Saha.
27. So the evidence so far discussed indicate that the cause of death of Anuradha Saha was a natural cause or the cause was quite obvious for which post-mortem examination was not held.
28. It appears from the records of Breach Candy Hospital that on 17.5.1998, "Anuradha was haemodynamically stable." On 18.5.1998, it was also written "appears to be .............. haemodynamically stable so far there is no organ involvement". On 19.5.1998, it was written "patient is holding well................ urine output satisfactory .................... breath sounds fairly good................ Peristalsis present..............". On 21.5.1988, the note indicates "normal breath sounds ................ in summary the lady is holding her own .............". On 22.5.1998, it was written "patient holding reasonably well ......... conditions satisfactory". 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.
29. The records of Breach Candy Hospital further indicates that there was possibility of contacting further infection as is very common in a case of TEN. These sources of infection may be external causes also like the insertion of urinary catheter, IV lines, hospital acquired infections. It also appears from the record of Breach Candy Hospital that on 25.5.1998 after x-ray of chest there was no evidence of ALI (Acute Lung Injury). It appears that the doctors of Breach Candy Hospital termed the Oedema (accumulation of fluids) in the lungs as ALI. Practically from 26.5.1998 the condition of Anuradha suddenly deteriorated due to ALI. Dr. Udwadia on 27.5.1998 at 10-30 A.M. wrote "she deteriorated .................... I feel this is related to Sepsis. It is likely that the severe TEN is also responsible for its own systemic inflamatory response syndrome. The presence of fever + increasing leucopenia + Thrombocytopenia (low Platelet count) + increasing Tachypenoea (high respiratory rate) and Tachycardia (high heart rate) + overall deterioration point to the above (SIRS) and early ALL.....".
30. By quoting Harrison's Principle on Internal Medicine, 14th Edition, page 776, it is to be clarified that septicemia ('systemic illness caused by the microbes or their toxin via the blood stream') and Systemic Inflamatory Respiratory Syndrome (SIRS) are not same. SIRS can lead to ALI, that is the lung may be the first organ to fail in the multi-organ failure leading to death. Dr. Udwadia also related ALI with MODS (Multi Organ Disfunction) by noting "Acute Lung Injury and MODS".
31. The learned counsel for the doctors, referring to Harrison's Principle on Internal Medicines, 14th Edition, page 776 and also the principles on Critical Care, 2nd Edition by J.B. Hall et.al. page 222 analysed the definition of SIRS and the patient's signs fulfilling SIRS and contended that "central to the definition and clinical expression of MOSF (Multi Organ System Failure) is a pattern of Immuno-Physiologic host Response typified by SIRS. Although often thought to be sepsis rather than inflammation per se, nearly 15% of patients enrolled in recent sepsis trials who met this criteria subsequently were found to have no evidence of infection". It is pointed out that Dr. Udwadia could not settle whether it was Septicemia or SIRS. It is pointed out that the last blood culture were - ve. The swab culture may be + ve. But unless blood culture is + ve for micro organism, one cannot satisfy the criteria for Septicemia. It is argued that the blood culture having found to be negative it proves beyond doubt that SIRS was not due to microbial etiology. It is also argued that as Dr. Udwadia was on leave from 27.5.1998 and the patient expired on 28.5.1998, his thought process could not be translated in the death certificate. It is also argued quoting Fitz Patrick's Dermatology in General Medicine, 5th Edition page 647 "Myocarditis (inflammation of heart muscles) Miocardial Infarction ...... ..... ...... frequently seen in fatal cases". So it was argued that cause of death in the instant case was not proved beyond reasonable doubt. It Is also argued that DIC (Disseminated Intravascular Coagulation) is also a known life-threatening complication of TEN and when from the records of Breach Candy Hospital (page 235, volume IV of the paper book), it was detected that the patient's blood showed an increase in Partial Thromboplastin Time (PTT) and reduced Platelet i.e. Thrombocytopenia (page 329, vol. IV of the paper book), it was indicative of DIC. So the evidence of Dr. Udwadia, as discussed hereinabove strengthens the contention of the defence that a post-mortem of the victim was absolutely necessary for establishing beyond any reasonable doubt as to whether she died due to 'Septicemic Shock' or death is attributable to other causes like SIRS, ALI, DIC and others. So it was rightly contended that in the absence of a post-mortem examination, the entire prosecution case hinges on vague surmises and presumption as to cause of the death of the victim without any clinical and laboratory data available to support the same.
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. It is also indicated hereinabove quoting Dr. Udwadia that the "cause of death is a natural cause or the cause is quite obvious .........." The doctor issued the death certificate was also not examined in this case for ascertaining actually what prompted him to come to a conclusion as regards the cause of the death. Accordingly when the cause of the death remains unexplained, it would be rather unsafe to come to a conclusion that the immediate cause of death was the wrong treatment of Anuradha at Calcutta specially at the hand of the three doctors. 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.
33. For finding out the cause of the death, the factual matrix discussed hereinabove goes to show that Anuradha immediately after arrival to Calcutta developed different ailments from 3.4.1998 and till 7.5.1998, she was treated by different doctors the details of which were not supplied. The notes in the Breach Candy Hospital in the evening of 17.5.1998 show that Dr. Saha (P.W.2) divulged at the time of admission that Anuradha was administered various medicines including antibiotics (Ampicillin etc.), NSAIDS like Nimesulide which were not prescribed either by Dr. Sukumar Mukherjee or by the doctors at AMRI. Who actually administered all such medicines are not clarified. So it is argued rightly that antibiotics and NSAIDS are considered to be notorious for being a causative factor for on-set of TEN as has been observed in one of the most authoritative tests in Dermatology. According to Goodman and Gillman's Dermatological Basis of Therapeutics, 10th edition page 1212 - for Cephalosporin 'the reactions appear to be identical to those caused by the Penicillins and this may be related to the Shared, (sic)-Lactum Structure (Penicillins and Ampicillins have (sic)-lactum structures) of both group of antibiotics ................... cross reactivity in many as 20% of patients allergic to Penicillin.' It is pointed out that despite noting that TEN is due to Ampicillins, Dr. Udwadia prescribed Cephalosporin (Fortum) antibiotics. In this connection, I like to quote the note made at 10-00 P.M. on 17.5.1998 in the daily orders (page 240, vol. IV of the paper book) of Breach Candy Hospital:
"Mrs. Anuradha Saha has been admitted to Breach Candy Hospital on 17.5.1998 in the night at 9.30 P.M. Her condition on admission is serious. She has been accompanied by her husband Dr. Saha, who has given the history of antibiotic ingestion for Respiratory Tract Infection - Rovamycin Roxithromycin, Ampicillin, Ampiklox & Numesulade followed by development of Toxic Epidermal Necrolysis,. She has received T. Prednisolone 120 mg/day for seven days and also Inj. Depo-Medrol IM X 3 days. She has been haemodynamically stable till now. She is able to swallow liquids which has been her only nourishment over the past few days.
She has been shifted by Flight from Calcutta, She was examined on admission - haemodynamically stable, conscious, HR-120/min, good volume, attempt of uncovering the patient for detailed examination unwelcome, T-99F, BP could not be recorded, lungs - clear. Dr. Saha was informed that she needed to be hydrated well, and that such patients are usually grossly hypovolemic. A functional Angiocath was secured in Rt. hand.
Complete Bio-chemistry, blood counts and blood C/S sent. XRC was ordered (refused by Dr. Saha). It was planned to give 4 pints (DNS, alternately with normal saline) till 8 A.M. coming morning which were not transfused at the collective request of the patient and her husband.
Dr. Saha agreed to continue IV Cifran as the antibiotic.
S/B Dr. S. M. Keshwani By 12 A.M. - 18.5.98 - her blood counts and bio-chemical reports were ready as follows .............................................".
34. So the Breach Candy Hospital record indicates that Dr. Kunal Saha at the time of admission of Anuradha in that hospital gave the history "of antibiotic ingestion for Respiratory Tract Infection, antibiotic like Rovamycin, Roxythromycin, Ampicillin and Ampiklox and Numesulade followed by development of Toxic Epidermal Necrolysis." It was also intimated that she received Tab. Prednisolone 120 mg. per day for seven days and also injection Depo-Medrol Inter-muscular X 3 days. The giving of this history indicates that during the period from 3.4,1998 upto 6.5.1998 for more than one month, Anuradha was suffering from Respiratory Tract Infection along with other ailment for which she was treated by different doctors and were given different antibiotics. The details of the said treatment from 3rd April, 1998 to 6th May, 1998 is not produced in details for assessing the total input of antibiotic and other medicines on Anuradha. It is interesting to note that on 26th April, 1998 when Dr. Sukumar Mukherjee was taken to the parental house of Anuradha for a check-up no attempt was made on the part of the patient party to hand over the treatment of Anuradha at the hand of Dr. Sukumar Mukherjee. It is also not claimed by the P.Ws. that Dr. Sukumar Mukherjee had any role to play in the treatment of Anuradha on 26.4.1998. The P.W. 2, Dr. Kunal Saha, on this score deposed which are quoted below :
"Q : Did you go to Dr. Mukherjee with your wife on 25.4.1998 for advice?
A . Not so. I went to Dr. Mukherjee with my friend only on the same date with a request to come to my in-law's house to see my wife.
Q : When did Dr. Mukherjee examine your wife for the first time in your in-law's house ?
A : He came and examined my wife on '26th April, 1998.
Q: Do you know that Dr. Mukherjee advised you for your wife naematological bio-chemical, serological, immunological test as well as micro-biological, virological from the School of Tropical Medicine and a radiological test?
A : I do not remember exactly what were the tests advised by Dr. Mukherjee on that day. All I remember clearly that he did diagnose as post-viral skin rash and advised to take rest without any specific therapy.
Q : Did you get all tests as suggested by Dr. Mukherjee for your wife ?
A . As I said I do not remember what tests he advised on 26.4.1998, but if any such test were advised by Dr. Mukherjee those must have been done.
Q : Have you filed the report of that test or do you like to produce the same?
A : If any test was done as per advice of Dr. Mukherjee on 26.4.1998, these are irrelevant so far as the accusation brought against him in the complaint is concerned."
35. So it is sufficiently clear that the prosecution has withheld the treatment schedule of Anuradha from 3rd April, 1998 to 6th May, 1998. The different tests advised by Dr. Mukherjee were undertaken or not is also not proved. From the trend of replies given by Dr. Kunal Saha it is sufficiently clear that he wanted to base his argument against Dr. Sukumar Mukherjee from 7.5.1998 when Dr. Mukherjee for the first time injected 80 mg. of Depo-Medrol in that night and wrote a prescription to that effect.
36. Much was argued on behalf of the respondent that Dr. Mukherjee without any diagnosis opted to give a lethal dose of Depo-Medrol which in itself is a rash as well as negligent act. It is also argued that without diagnosis corticosteroid like Depo-Medrol in such a high dose of 80 mg. IM, twice daily for three days should not have been advised. It is further argued that for the purpose of diagnosis, it is necessary to wait for the different tests on the body.
37. It is already indicated hereinabove that the advice of Dr. Mukherjee to get haematological, bio-chemical, serological, immunological micro-biological, virological tests was not honoured. The previous treatment chart of Anuradha from 3rd April, 1998 to 6th May, 1998 was also not produced before Dr. Mukherjee when Anuradha was taken to him at Nightingale Diagnostic Centre in the night of 7.5.1998. After examining Anuradha on 7.5.1998 Dr. Mukherjee diagonised that "Angio Neurotic Oedema with allergic vasculitis challenge to Chinese food +ve". In his examination under Section 313 Dr. Mukherjee replied "I had the occasion to see the patient on three times - once at her house, once in my clinic and last at AMRI.
I suggested investigations on my first visit when she was already having some treatment to make out a diagnosis.
On 7.5.1998 after I got the investigations which I possess, I have approached clinically with history taking physical examination and relevant laboratory test. On that evening my working diagnosis was allergic or hyper sensitive vasculitis based on rash, fever and facial puffiness.
At that point there were no blisters, target leisidus Bullae or mucosal Erosions. The laboratory tests have been done which were largely non-helpful for the diagnosis.
A clinical diagnosis has been made out and those were no clues for diagnosis of TEN. In view of the continuing inflamatory changes over the skin over a period of three weeks I thought it prudent - steroids and Depo-Medrol was my choice matching with gradual progression of the disease".
38. The prescription dated 7.5.98 issued by Dr. Mukherjee indicates that he advised IM Injection of Depo-Medrol 80 mg. twice daily for three days to overcome the situation and he actually injected 80 mg. inside his chamber. He also advised Cetzine 10 mg. daily. It was pointed out that according to Cutaneous Medicine and Surgery 1996 Edition, page 588 one "Hi anti histamine (Cetrizine) "can be used in vasculitis. After three days Dr. Mukherjee advised Tab. Wysolone 40 mg daily X 2 days 30 mg daily X 2 days 20 mg daily X 2 days 10 mg daily X 2 days + Omez 20 mg twice daily.
So this prescription indicates that Tab. Omez 20 mg. was given to prevent hyper-acidity as well as counteracting adverse effect of any steroid including Depo-Medrol. The prescription of Wysolone (which is also corticosteroid) was administered for tailing up or tapering the steroid treatment which cannot be stopped abruptly. There was no indication nor it is claimed that the skin was necrolytic. There was also no mucosal erosions in the mouth. There was also no possibility of hypovolemia of the patient on 7.5,1998 as the skin was not sloughed off and there was no question of oozing of fluid from raw skin surface. The evidence is that Anuradha came to Dr. Mukherjee's chamber on 7.5.1998 on walking. So it is rightly argued by the learned counsel appearing on behalf of the appellant doctors that taking into consideration all the circumstances, the supportive therapy for Angio Neurotic Oedoma with allergic vasculitis on 7.5.1998 which was aggravated by intake of Chinese food on 6.5.1998 cannot be considered as rash and negligent.
39. It is not at all possible for a doctor not to start a treatment unless the reports of different tests are made available to him within few days. It is not desirable that till the arrival of different report of tests, an attending physician will not start the treatment. On the other hand, in the present case there was sufficient indication from the patient party that Anuradha was suffering from certain allergic disorders and that was aggravated due to intake of Chinese food. It is also to be noted that such type of allergic disorder including the appearance of rash on the skin are generally treated with the aid of steroid. So it is not correct to say that Dr. Mukherjee should not have prescribed Depo-Medrol 80 mg. twice daily for three days without a diagnosis. It is also to be noted that the noting "Angio Neurotic Oeduma with allergic Vasculitis" sufficiently diagnosed the disease.
40. So for the first time when Dr. Mukherjee wrote the prescription on 7.5.1998 he noticed skin rash with certain allergic disorders. The patient party did not give any feedback of the treatment on 8.5.1998 and 9.5.1998. It was also not intimated whether Depo-Medrol as advised on 7.5.1998 was actually administered on Anuradha or not. Practically there is no evidence of actual administration of Depo-Medrol on Anuradha on 8.5.1998 and 9.5.1998 or in the morning of 10.5.1998 by which time the advice of Dr. Mukherjee to administer six injections of 80 mg. was to be over. If actually six such injections - one on 7.5.1998, two on 8.5.1998, two on 9.5.1998 and one on 10.5.1998 morning were actually administered, there would have been a total administration of 480 mg. (80 mg X 2 X 3 days). On 11.5.1998, when it was informed about the aggravation of the condition of the patient, advice was given to admit her at AMRI. On 11.5.1998 after her admission under Dr. Balaram Prasad, in the history sheet (Ext'-S), it was noted as follows :
" ? Drug allergy ? Post viral erruption.
Patient was already taken Wysolone (prednisolone) for last 2-3 days.
Today's dose taken at home ................................"
In the prescription or treatment sheet, it was written :
"Advice - 1. Urgent C.T. Scan--Brain without contrast (no contrast)
2. Wysolone 20 mg, 2 tabs once daily after food
3. Zinetac 150 1 tab b.d.
4. Claribid 250 1 tab. twice daily
5. Inj. Depo-Medrol 80 mg.(2 ml.) I/M B.D. x 1 day.
6. Polybion Syrup 2 tsp once daily.
7. Prof. Sukumar Mukherjee and Professor A.R. Chowdhury will kindly visit and give further advice.
8. Semi solid diet."
On the left hand side of this prescription, it was also indicated against Item No. 5 (Injection Depo-Medrol), where there is an endorsement, "started at home for last four days"; and immediately thereunder, it is written "Refd. to Dr. A.K. Ghosal, Dermatologist".
41. So at the time of admission at AMRI it was intimated by the patient party that for the last 2-3 days, the patient was taking Wysolone (Prednisolone).
It is not clear at whose instance the patient was taking Wysolone 20 mg. for the last 2-3 days. It is already stated above that Dr. Sukumar Mukherjee in his prescription dated 7.5.1998 advised Tab. Wysolone 40 mg. x 2 days 30 mg. X 2 days 20 mg. X 2 days and 10 mg. X 2 days and there was a specific direction that Wysolone was to be started after the injection of Depo-Medrol for three days.
42. It is not clear as to why in the prescription of 11.5.1998, Dr. Prasad advised Inj. Depo-Medrol 80 mg. I.M.B.D. for that day. So there is sufficient indication that at the time of admission at AMRI, the prescription dated 7.5.1998 of Dr, Mukherjee was not taken into consideration. On the other hand, it is also indicated that the patient was being treated at the advice of somebody else. Who was this somebody or who were these doctors are not clarified. Of course, there is also indication that on 8.5.1998 and 9.5.1998 the patient was seen by other doctors, specially the Dermatologist and they by their silence virtually approved the prescription dated 7.5.1998 of Dr. Mukherjee. The fact remains that there is no specific evidence that all the six 80 mg. dose of Depo-Medrol was injected on Anuradha between 7.5.1998 and 10.5.1998.
43. In the medication chart of AMRI, it is indicated that on 11.5.1998 at 9-00 A.M. and 10-00 P.M. Wysolone 20 mg was administered and on 12.5.1998 it was omitted. Though there is indication that on 12.5.1998 at 9-00 A.M. Tab. Wysolone 50 mg. was given. At whose instance, Wysolone tablet on those days was given is not clear. It is also indicated that Inj. Depo-Medrol 80 mg. was injected at 2-00 P.M. and 8-00 P.M. on 11.5.1998 and at 8-30 A.M. on 12.5.1998. The AMRI treatment chart also indicates that at 2-15 P.M. of 11.5.1998 Dr. Sukumar Mukherjee examined the patient and prescribed certain medicines with the finding "Maculopapular Bullous Lesion ? Allergy to exogenous toxin or agent unlikely to SLE/allied disorders". In his reply to the question put to Dr. Mukherjee under Section 313 of the Cr.PC it was indicated "allergic vasculitis can be extensive with bullae formation, necrosis involving the skin and mucous membrane. There may be other reasons to form blisters and peeling of the skin like Penphigus which are much common than in TEN................". On this score reference was made from Fitz Patrick's Dermatology in General Medicine, 5th edition page 645 to show that incidence of TEN was ".5 to 1.4 per million per year." From Oxford Rheumatology, 6th edition page 861 it was also indicated "Bullae also occur in allergic vasculitis". It was also argued referring to Cutaneous Medicine and Surgery, 1996 Ed. K.A. Arndt. et. al. page 264, that Maculopapular Bullous Erruptions can occur in SLE (Systemic Lupus Erythematosus) . So referring to the prescription of Dr. Mukherjee which he wrote on 11.5.1998, it was argued that for this reason Dr. Mukherjee suggested blood test like A.N. Factor (Anti Nuclear Factor) and also DS-DNA (Double Stranded DNA) which were pre-requisite for diagnosis of SLE. It was also argued referring to Harrison's Principle of Internal Medicine, 14th edition page 307 that "blisters may be integral part of Steven's-Johnson Syndrome, TEN and Fixed Drug Erruption". It was pointed out referring to FITZ Patrick's Dermatology in Medicine, 5th edition page 650 table 59-.2 "Ampicillin" rash needs to be differentiated from SJS-TEN. Erruptions in Mucous Membrane of mouth can occur in each of the above diseases. Reference was also made to Principles and Practice of Dermatology, W.M. Sams, et. al. 6th edition, page 31 to show that "medications used by the patient--may also explain otherwise puzzling aspects of erruptions". So it is sufficiently clear that drug allergy gives rise to all varieties of skin rash in isolations or in various combinations. It is already stated above that at the time of admission of the patient at Breach Candy Hospital, it was disclosed by Dr. Kunal Saha that the patient took number of drugs that were not prescribed by any of the accused doctors. It was also pointed out that even in case of Steven Johnson Syndrome (Erythima Multiforme Major) one is required to consider "Pollymotip forms of Leucocytoclastic Allergic Vasculitis" according to Dermatology e.d. O-Braun-Falco 1991 page 411. So on 11.5.1998 Dr. Mukherjee stood at the cross-road of Bullous Erruptions and accordingly he suggested relevant investigations : "repeat Hb,TC/DC, EST, CRP/ SGPT, SCOT, Urea, Creatinine, total Protein, Uric Acid, Platelets AM Factor, DS-DNA". He also directed - 1) To consult Dermatologist.
2) May I request Dr. Abani Roychowdhury, MD to see her ?
3) Eye check-up by Opthalmologist, please.
4) Dr. B. Prasad arrange for eye, dermatological check-up.
Along with different medicines he also advised oral care, change of bed, daily fluid intake and also to consider whether, after blister puncture the fluid is to be sent to School of Tropical Medicine, Virology Department with clinical notes.
44. In his reply to the questions put under Section 313 of the Cr.PC Dr. Mukherjee further stated that on 8.5.1998 Dr. A.K. Ghosal (consultant Dermatologist) and on 9.5.1998 Dr. S. Ghosh (consultant Dermatologist) corroborated the treatment schedule of Dr. Mukherjee of 7.5.1998 and accordingly Dr. Mukherjee continued with the same diagnosis on 11.5.1998. The opinion of Dr. Mukherjee was that Anuradha was suffering from Allergic Vasculitis in an aggravated condition. While doing so he had in his mind the prolonged treatment of Anuradha with different medicines from 3.4.1998. So the question is, keeping in view all these factors, was Dr. Mukherjee justified to continue injection Depo-Medrol or not. It is pertinent to mention that at 2-15 P.M. on 11.5.1998 in his prescription Dr. Mukherjee again prescribed Injection Depo-Medrol 80 mg. twice daily; x 2 days and 40 ing. IM twice daily x 2 days. This indicates that Dr. Mukherjee advised introduction of 480 mg. of Depo-Medrol (80 mg x 2 x 2 days and 40 mg x 2 x 2 days).
45. Thus it appears that in the prescription of 7.5.1998 Dr. Mukherjee prescribed a total doze of 480 mg. of Depo-Medrol in 3 days and 480 mg. in 4 days in the prescription of 11.5.1998. Admittedly 80 mg. of Depo-Medrol was injected by Dr. Mukherjee on 7.5.1998 and the treatment-sheet of AMRI indicates that 80 mg. of Depo-Medrol was injected twice on 11.5.1998 and once on 12.5.1998. So the proven administration of Depo-Medrol 80 mg. injection was 320 mg. Moreover, Depo-Medrol 80 mg. proved to be injected on 7.5.1998, 11.5.1998 and 12.5.1998. This tallies with the history sheet of Breach Candy Hospital where at the time of admission, Dr. Kunal Saha informed that injection Depo-Medrol IM 80 mg. was given for three days. There is no further evidence that Depo-Medrol beyond these three days was administered. So the total intake of Depo-Medrol Injection during these three days was 320 mg. It is also indicated that Tab. Wysolone 20 mg. was administered at 9-00 A.M. and 10-00 P.M. on 11.5.1998 and another doze of 50 mg. at 9-00 A.M. on 12.5.1998. So upto 12.5.1998, Anuradha had taken 320 mg. of Depo-Medrol and 90 mg. of Wysolone. It is also clear that the injection Depo-Medrol which was administered at 2-00 P.M. on 11.5.1998 was before the arrival of Dr. Sukumar Mukherjee who actually saw the patient at 2-15 P.M. on 11.5.1998 and prescribed the medicines. This further clarifies that the intake of Depo-Medrol was neither regular nor it was done as per prescription of 7.5.1998 of Dr. Sukumar Mukherjee.
46. Side by side, the oral administration of Tab. Wysolone is sufficient to indicate that the treatment of Anuradha was being carried on not as per the prescription dated 7.5.1998 of Dr. Mukherjee. On the other hand, the evidence on record are sufficient to indicate that from 3.4.1998 till her admission at AMRI on 11.5.1998, Anuradha was being treated after taking advice from different doctors. There is no convincing evidence that from 7.5.1998, Anuradha was being treated by Dr. Sukumar Mukherjee alone. It is already stated above that Dr. Kunal Saha was a medical-man. The evidence on record indicates that his other doctor friends with Post-Graduate qualifications also joined hands in the treatment of Anuradha. At their insistence Dr. Saha (P.W. 2) contacted Dr. Sukumar Mukherjee. It also appears from the evidence of Dr. Kunal Saha that though he was not well-acquainted with Dr. Sukumar Mukherjee, he contacted himself on the basis of the informations given to him by his friend doctors.
47. The learned counsel appearing on behalf of the complainant contended that the first dose of 80 mg. of Depo-Medrol injected on Anuradha on 7.5.1998 by Dr. Mukherjee was a lethal dose without any diagnosis whatsoever. But from the evidence on record and also the discussions made hereinabove, it is sufficient to indicate that Dr. Mukherjee did not diagnose the disease as TEN either on 7.5.1998 or on 11.5.1998. The learned counsel on behalf of the complainant pointing out the evidence on record, specially the records of AMRI, argued that Dr. Mukherjee was not aware of the disease TEN though within a few minutes of his examination of Anuradha on 11.5.1998 Dr. A.K. Ghosal, a renowned Dermatologist, diagnosed the disease as TEN. From the AMRI record it is not possible to ascertain actually when the case was seen by Dr. A.K. Ghosal. But for the first time he considered the disease as Toxic Epidermal Necrolysis and thereafter, he described "separation of large sheets of skin from back and limbs, many small/large bullae on limbs. Duskey red areas of vasculitis almost all over the body. Mild conjunctivitis. Erosive lesions on tongue and buccal m.m.". Dr. Ghosal was not examined by prosecution in this case though he advised continuation of the same medicine as prescribed by Dr. Mukherjee. Of course towards the last part of his prescription Dr. Ghosal gave a note "to be reviewed later". Dr. Kunal Saha (at page 195 of vol. I, part 1) claimed that the diagnosis of TEN by Dr. Ghosal was done 'minutes after Dr. Mukherjee examined Anuradha at AMRI ................'. But in his cross-examination (at page 216 of paper book of part 1, Vol. I) he said ".......Dr. Ghosal visited Anu at AMRI only hours after Dr. Sukumar Mukherjee examined her on 11.5.1998. However Dr. Ghosal once came and prescribed something and diagnosed the case TEN, but since senior Dermatologist Dr. Halder was supposed to come and take charge of the patient, Dr. Ghosal did not do anything." Surprisingly enough there is nothing on record to show or indicate that on 11.5.1998 there was any indication of visit of Dr. Hafder as a Dermatologist in connection with this case. So it is not clarified how it was supposed that Dr. Halder would take charge of the patient. In the prescription of Dr. Sukumar Mukherjee, Dr. Balaram Prasad was advised to consult a Dermatologist. But he did not indicate the name of Dr. B. Halder as a Dermatologist. The AMRI records indicate that on 12.5.1998 Dr. B. Prasad made a note "Professor B. Halder has kindly agreed to examine this patient today". Dr. Balaram Prasad (P.W..3) in his examination-in-chief (at page 231 part I vol. I) stated "............. since Dr. Ghosal saw the patient at her home, patient party made a request for review of the patient by the said Dr. A. K. Ghosal at AMRI and since it was a dermatological case and since the patient was the wife of a doctor, party's request obliged. And party also showed me a reference letter of Prof. Sukumar Mukherjee for Prof. B. Halder". It also appears from page 32 (part 1 vol. I of the paper book) that Dr. Balaram Prasad also made a note "may I request Prof. B. Halder to examine this patient and Adv.". Dr. Prasad as P.W.3 also proved the said endorsement and also proved that Prof. B. Halder visited the patient and wrote a prescription on 12.5.1998.
48. So from the above evidence, it is clear that Dr. A.K. Ghosal was treating Anuradha at her home as a Dermatologist and on 11.5.1998 after the departure of Dr. Sukumar Mukherjee from AMRI, he diagnosed the case as TEN. But followed the same treatment of Dr. Sukumar Mukherjee. The P.W.3 also claimed that the patient party showed him a reference letter of Dr. Sukumar Mukherjee for Dr. Baidyanath Halder. But this reference letter has not been produced in this case and as such, there is nothing on record to show that Dr. Mukherjee ever requested Dr. Halder to see the patient.
49. Of course Dr. Halder examined the patient on 12.5.1998 and he also diagnosed the diseased Toxic Epidermal Necrolysis (? Drug). But excepting these two endorsement-- one of Dr. A.K. Ghosal (who is not examined as the witness) and the other of Dr. B. Halder (who is an accused in this case) there is no convincing evidence that Anuradha was attacked with TEN. The reason of non-examination of Dr. A.K. Ghosal has not been explained by the prosecution. He also did not face the trial to prove how he came to know the disease as TEN. The learned counsel for the complainant contended that the detection of the disease TEN by Dr. A.K. Ghosal was confirmed by Dr. B.N. Halder. But in a case of this nature when the diagnosis and treatment of Dr. B.N. Halder are doubted and questioned by the complainant, it would not be possible to place any reliance on the evidence of the accused doctor who considered the case to be TEN. In such a situation it is difficult to conclude that Anuradha was attacked with TEN on 11.5.1998 or thereafter. True it is that in the medical papers of Breach Candy Hospital, the disease is also diagnosed as TEN. But it is to be noted that the attending physician Dr. Udwadia (PW 10) was not a Dermatologist. No one else came forward to say that Anuradha was suffering from TEN. In the death certificate also, as is already discussed, it is indicated that the death was due to Multi System Organ Failure in a case of Toxic Epidermal Nocrolysis to Cardio Respiratory Arrest. In fact, excepting the reply of Dr. B.N. Halder during his examination under Section 313 of the Cr.PC, there is no convincing proof that Anuradha Saha was suffering from TEN. It is true that Dr. Kunal Saha claimed that Anuradha Saha was suffering from TEN and that she died of maltreatment at the hand of the Calcutta doctors. But it is to be noted that Dr. Saha was not a Dermatologist in course of the treatment of Anuradha Saha, since he claimed that he became a specialist on TEN subsequently. From his evidence it is clear that Dr. Saha studied the subject after the death of Anuradha Saha and contacted different experts in the field and ultimately he also wrote an article on TEN. But the fact remains that there is no convincing evidence from his side that Anuradha was suffering from TEN.
50. In this connection, it is also to be noted that TEN was not considered to be a specific disease. Dr. Kunal Saha in his evidence accepted that "TEN may develop abruptly" (page 213 Part 1, vol. I) . He also admitted that there is no time-frame about the development of TEN. In Harrison's Principle of Internal Medicine 14th Edition page 307, it is indicated that in TEN "on-set is generally acute." In Fitz Patrick's Dermatology in General Medicine, 5th Edition page 647, it is indicated that the on-set of disease (SJS-TEN) is sudden. In this page of Fitz Patrick it is also indicated that before peeling of skin, there is blister in face both in SJS and TEN. At page 645 of Fitz Patrick, it is indicated that SJS (Steven Johnson Syndrome) and TEN are overlapping diseases. It is also clarified by medical authorities that when the skin affection is less than 10%, it can be described as SJS, but when it is above 30% if can be described as TEN. It is an accepted phenomenon that between 10% and 30% affection of skin, the case of SJS and TEN overlaps.
51. So from the different medical authorities as well as the evidence on record, it is difficult to believe that Anuradha Saha was affected by TEN when Dr. Mukherjee examined her. Dr. Mukherjee himself claimed that he never treated Anuradha as a TEN patient. It is also in evidence as is also admitted by Dr. Mukherjee indirectly that a TEN patient cannot be treated by Depo-Medrol. The package insert of Depo-Medrol does not indicate that TEN cannot be treated by the said medicine. But at the same time, it is to be noted from the package insert and Physicians' Desk Reference 1993 page 2446 that "Depo-Medrol is also indicated "in SJS (severe generalised Erythima Multiforme) SLE, Pemphigus". According to USP DI 1994 (page 973) ".................in Glucocorticoids IM (as for example Depo-Medrol) may be administered in cases of vasculitis". So the choice of Depo-Medrol by Dr. Sukumar Mukherjee upto 11.5.1998 which was also approved by the Dermatologist, Dr. A.K. Ghosal cannot be construed to be incorrect and contrary to the medical practice and ethos. It is to be stated that Depo-Medrol was prescribed by Dr. Mukherjee not on a TEN patient. It is also to be noted that the description of the disease by Dr. Mukherjee sufficiently justified that he never diagnosed the disease as TEN.
52. A question was raised why Dr. Ghosal considered the disease as TEN on 11.5.1998 after few hours of examination of Anuradha by Dr. Mukherjee. At the risk of repetition it is indicated that Dr. Ghosal has not come forward to explain how he considered the case as TEN. But he also described the condition of skin etc. of Anuradha thereby giving sufficient chance for consideration that it was a stage of overlapping of SJS and TEN. In this connection it is interesting to note from the recording of Dr. Kaushik Nandy on 13.5.1998 that affection of Anuradha is to the tune of 25% to 30% of B.S.A. (body surface area). This was undoubtedly a stage of overlapping SJS-TEN. So by any stretch of imagination it cannot be said that prescription of Depo-Medrol by Dr. Mukherjee was opposed to medical practice and accepted treatment protocol. It was never considered either by the Trial Court nor it was taken into consideration at the time of argument by the learned counsel appearing on behalf of the complainant that from 3.4.1998 Anuradha was suffering from such ailment which brought relapsing of allergic disorders. It was also not taken into consideration by the treating doctors from 3.4.1998 till 6.5.1998 or thereafter that there was possibility of drug allergy as well as allergy from Chinese food. So for the treatment of allergic disorders, application of steroid is undoubtedly an accepted treatment protocol. There is nothing on record on the basis of which it can be said that Dr. Sukumar Mukherjee being a physician, did not consider this aspect while prescribing Depo-Medrol for the initial treatment of such allergic disorder of Anuradha. In this connection it is also to be mentioned that Dr. Mukherjee while treating Anuradha by steroid took adequate steps for tailing up or tapering of the dose of steroid and also supportive measures and readily advised consultation with Dermatologist. So all those steps along with a direction for repeating different tests indicate that Dr. Mukherjee thought it fit to refer the matter to the Dermatologist on 11.5.1998. Actually before his departure on leave from AMRI, he adequately advised Dr. Balaram Prasad in this regard. So in such a view of the matter, it is required to be considered whether Dr. Mukherjee was rash and/or negligent in treating Anuradha by Depo-Medrol and thereby caused Immuno Suppression to her.
53. Dr. Kunal Saha referring to the opinions given by the three internationally accepted experts on TEN claimed that the death of Anuradha was due to the malpractice of the Calcutta doctors specially of the three accused doctors. Much was argued on those three notes of the experts sent in Internet. But those experts were never produced before the Court for cross-examination nor the papers which were sent to these experts for their opinion were produced to justify the concfusion arrived at by those experts. It appears that reliance was made by the Trial Court as well as by the learned counsel for the complainant on these opinions of experts. But it is rightly argued on behalf of the appellant doctors that without examination of these experts and without going through the reference papers that were placed before these experts, no reliance should be placed on the opinion of these experts. Accordingly, I hold and conclude that the opinion of these experts do not prove that Anuradha was wrongly treated either by Dr. Mukherjee or by the other two accused doctors.
54. As regards the treatment at the hand of Dr. Mukherjee it is already indicated that on 26.4.1998 he did not prescribe any medicine, but on 7.5.1998 he prescribed Depo-Medrol along with Cetzine inasmuch as he considered the symptom as Angio Neurotic Oedema with Allergic Vasculitis "challenge to Chinese food +vc". Practically there is no evidence nor any clinical sign that Anuradha was attacked with TEN. There was no indication of any Erythima Multiforme Major, Target Lesions Blisters or Bullae, Eruptions in mucous membrane and peeling of skin on 7.5.1998 and as such, it can definitely be said that on 7.5.1998 Anuradha was not suffering from TEN. In paragraph 8 of the complaint (Part 1 Vol. I Page 5), it is claimed "despite the institution of the Injection Depo-Medrol as per the aforesaid prescription of the accused No. 1. Dr. Sukumar Mukherjee, the skin rash and Oedema became worse with the continuation of this injection. Indeed her fever also came back and her mucous membrane in her mouth were affected with eruption .........................". This indicates that erruptions in mucous membrane in mouth occurred after 7.5.1998. Similarly Dr. Kunal Saha claimed that blisters appeared as early as on 9.5.1998 (Part 1 vol. I page 196). Dr. Kunal Saha also in his initial examination under Section 200 of the Cr.PC claimed that on 11.5.1998 the skin started loosening from the body of his wife (part 1 vol I page 36). So there was no peeling of skin on 7.5.1998. It is also indicated hereinabove that a number of blood tests that were suggested by Dr. Mukherjee on 26.4.1998 were showed to Dr. Mukherjee after more than a week on 7.5.1998, but those blood reports had not been placed though it is claimed by Dr. Saha that Dr. Mukherjee did not suggest any investigation before the clinical diagnosis on 7.5.1998. On the other hand, the direction of Dr. Mukherjee in his prescription dated 11.5.1998 as regards repeat of the tests including different blood tests indicates that there were prior blood tests. Non-production of these reports, having not been explained, it is very difficult to accept the argument of the learned counsel for the respondent that administration of Depo-Medrol injection on 7.5.1998 was without any basis.
55. It is also to be noted that the Dermatologist like Dr. Ghosal and Dr. S. Ghosh examined Anuradha on 8.5.1998 and 9.5.1998 and it is already stated above that they did not refute the diagnosis of Dr. Mukherjee. Admittedly Depo-Medrol is a Glucocorticoid which has anti-inflamatory and anti-allergic action. Reference was made to Martindale's 'The Extra Pharmacopoeia', 31st Edition, page 1021 to show that "the anti-inflamatory and Immuno-Suppresant Glucocorticoid properties of Corticosteroids are used to suppress the clinical manifestation of disease, in a wide range of disorders considered to have inflamatory and immunological components". It is already stated above that allergic vasculitis is an allergic and inflamatory 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. So the term "allergic vasculitis" is not strictly a dermatological disease. Different textbooks of medicines including Harrisons Principles of Internal Medicine devoted chapters on vasculitis. Only in few lines passing remarks are made on TEN. Dr. Schinde (P.W.8) admitted that "Depo-Medrol has anti-allergic and anti-inflamatory action. Therefore, it's a doctor's judgment to use the drug" (part 1 vol. I page 277). So it is rightly argued that Depo-Medrol is an ideal Glucocorticoid steroid to fight against allergic and inflamatory condition of the patient suffering for a month and that worsened on 7.5.1998. Dr. Mukherjee in his examination under Section 313 also replied "in view of the continuing inflamatory changes over the skin over a period of three weeks, I thought it prudent .................. Depo-Medrol was my choice matching with gradual progression of the disease" (part 1 vol. II page 375).
56. The product insert of Depo-Medrol and Physician's Desk Reference which have been relied upon by both the parties clearly show that Depo-Medrol has been prescribed for various acute diseases like "Acute Adrenal Insufficiency, Acute Gouty Arthritis, Acute Rheumatic Carditis, Acute Laryngeal Oedema, Acute Leukemia of childhood, SJS (Stevens Johnsons Syndrome), Pemphigus, Exacerbation of Systemic Lupus Erythemetosus and Drug Hypersensitivity Reactions" (Physician's Desk Reference 1993, pages 2446, 2447). All these are acute clinical and derraatological life-threatening conditions and are suggested to be treated by Depo-Medrol. Referring to Cutaneous Medicine and Surgery 1996 Edition. K. A. Arndt et. al. page 586 it is indicated that danger of death from Laryngeal Oedema is a feature of allergic vasculitis. Reference was also made to Dermatology 2nd Edition. Braun-O. Falco where it is pointed out that "the risk with Anglo - Oedema is swelling of Larynx which can lead airway obstruction and even death". So it cannot be said that Depo-Medrol is not a correct medicine in few acute conditions. The claim of Dr. Kunal Sana that Depo-Medrol stays in the body for 28 days is opposed to the evidence of Dr. S. K. Bhattacharyya, according to whom the half life of the drug is 139 hours. Practically, no authoritative text has been cited in support of the contention that Depo-Medrol stays in the body for 28 days. So the prescription dated 7.5.1998 of Dr. Mukherjee and the treatment suggested therein cannot be considered to be rash and negligent. Similarly, it is also indicated hereinabove that at the time of writing of the prescription at AMRI on 11.5.1998, Dr. Mukherjee did not consider that Anuradha was attacked by TEN and as such, the treatment by Depo-Medrol at that stage cannot be construed to be a rash and negligent act on the part of Dr. Mukherjee. In this connection, it is also to be pointed out that the patient was admitted under Dr. Balaram Prasad at AMRI and on his request Dr. Mukherjee examined the patient on 11.5.1998 at 2-15 P.M. before his departure for USA. In his prescription, he gave several advices including the advice to consult a Dermatologist. This indicates that Dr. Mukherjee, keeping in view the long-standing ailment of Anuradha and the condition on 11.5.1998, thought it fit to refer the patient to the Dermatologist. It is also in evidence that on 8.5.1998 and 9.5.1998 and also thereafter, other Dermatologists were also looking after Anuradha Saha. So at the request of Dr. Balaram Prasad, Dr. Ghosal after few hours of departure of Dr. Sukumar Mukherjee again examined Anuradha and diagnosed the ailment as TEN. It is already discussed above that Dr. A.K. Ghosal in spite of diagnosing the ailment as TEN advised continuation of the same medicine. It is also discussed above that the administration of Depo-Medrol IM 80 mg. was suggested by Dr. Mukherjee upto the morning of 10.5.1998 and thereafter he advised Wysolone in a tapering dose in the next eight days. So how before writing of the prescription at 2-15 P.M. of 11.5.1998 Wysolone was administered and Depo-Medrol was injected is not clear. This also indicates that the prescription dated 7.5.1998 of Dr. Mukherjee was not stringently followed for which on 11.5.1998 Dr. Mukherjee thought it fit to prescribe Depo-Medrol along with Wysolone with a request to get it verified through the Dermatologist and also through Dr. Abani Roychowdhury mainly on the ground that Dr. Mukherjee would be out of India for a long period of three weeks from 12.5.1998.
57. So the prescription dated 11.5.1998 written by Dr. Mukherjee is a guideline for AMRI and not a treatment schedule at the hand of the attending physician. In this connection, it is also to be noted that Dr. Mukherjee took the leave for his absence for three weeks long before the treatment of Anuradha at AMRI. Of course Dr. Kunal Saha tried to say that he was not aware of Dr. Mukherjee's going on leave. But the fact remains that Anuradha was being treated by several doctors upto 11.5.1998 and she was actually admitted at AMRI under Dr. Balaram Prasad. It is pertinent to mention that at this juncture, there was no idea that Anuradha was not getting proper treatment or there was any necessity to shift her to any other hospital or nursing home for better treatment.
58. The treatment of Anuradha by other doctors from 7.5.1998 to 11.5.1998 is also evident from the depositions of Dr. Kunal Saha (P.W. 2) as well as from the evidence of Dr. Balaram Prasad (P.W. 3). It is also to be noted that Dr. A.K. Ghosal was not attached to AMRI and it is admitted by Dr. Balaram Prasad that as desired by Dr. Kunal Saha and after taking permission of the President of AMRI, Anuradha was referred to Dr. A. K. Ghosal (part 1 vol. I page 328). It is also to be noted that Dr. Sanjoy Ghosh and Dr. A. K. Ghosal was interviewed in Penal and Ethical Committee. These two consultant Dermatologists have not been examined in this case, nor their opinion along with the treatment schedule was produced in course of the trial. So either these two Dermatologists endorsed the diagnosis or treatment schedule of Dr. Mukherjee or they treated the patient separately. But the prescription of Dr. A.K. Ghosal written on 11.5.1998 indicates that he advised repetition of the same medicines. By the term "continue same medicines". Dr. Ghosal meant which medicines are not clear.
59. It is on record that Anuradha was admitted under Dr. Balaram Prasad and was treated by him during the whole period of her stay at AMRI from 11.5.1998 till 17.5.1998 morning. The evidence of Dr. Prasad (part 1 vol. I page 237) is that "actually Dr. Kunal Saha showed me the prescription of Professor Mukherjee and asked me to continue Depo-Medrol and Wysolone". By this evidence it is indicated that the of prescription dated 7.5.1998 of Dr. Sukumar Mukherjee was produced before Dr. Balaram Prasad. Dr. Mukherjee also claimed in his examination under Section 313 that at the instance of Dr. Kunal Saha he gave the first injection of "Depo-Medrol to Anuradha. So the administration of Depo-Medrol on 11.5.1998 morning was undoubtedly not on the basis of any prescription of Dr. Mukherjee. Practically at whose instance this injection was administered is not proved. On the other hand, from the evidence of Dr. Balaram Prasad there is indication that at the insistence of Dr. Kunal Saha he continued Depo-Medrol and Wysolone on 11.5.1998 at AMRI (part 1 vol. I page 237).
60. It is already discussed above that from 3.4.1998 till 11.5.1998 many doctors examined Anuradha and different types of medicines were administered upon her. But the evidence of Dr. Balaram Prasad indicates that at the insistence of Dr. Kunal Saha the treatment was going on.
61. In this connection, it is also to be noted that Prof. B. N. Halder at the request of Dr. Balaram Prasad visited AMRI for examining Anuradha. Admittedly Prof. Halder was not attached to AMRI. Prof. Sukumar Mukherjee also did not give any written request to Prof. Halder to examine Anuradha. It is clear from the evidence on record that Dr. Kunal Saha and his doctor friends contacted Prof. Halder and thereafter at their insistence and on the request of Dr. Balaram Prasad, Prof. Halder came to AMRI and examined Anuradha, Prof. Halder also endorsed the view of Dr. A.K. Ghosal that Anuradha was suffering from TEN. Since Prof. Halder considered it to be a case of TEN, stopped the long acting steroid Depo-Medrol then and there, and wrote the prescription on the consultation record of AMRI. The prescription is without any date, but it is admitted by Prof. Halder while examined under Section 313 and also deposed by Dr. Balaram Prasad that Anuradha was examined by him on 12.5.1998. The prescription of Prof. Halder indicates that he stopped Depo-Medrol and in its place, he advised Prednisolone 40 mg. thrice, with other medicines. He also prohibited local anasthesia, Neomycin, Soframycin. He also gave importance on Electrolyte balance, nutrition and also advised for prevention of secondary infection. The prescription of Prof. Halder was attacked by the learned counsel for the respondent alleging that it was not universally accepted treatment protocol in case of a TEN patient. It is also stated that Dr. Halder was unaware of the disease TEN for which he could not know the proper management of TEN. Referring to the Textbook "Diagnosis and Treatment of Skin Disorders" written by, Dr. B. Halder, it was argued that he had no knowledge about TEN. In page 109 of the said Textbook it is written "some believe that Toxic Epidermal Necrolysis of the Lyell type is a variant of Erythema Multiforme. Blister formation is so extensive that sheets of skin lift off". So excepting such passing remark, there is no treatment protocol of TEN in this book. But it is rightly pointed out by the learned counsel for the appellant doctors that the said Textbook is written in 1988 and there is no further Edition of the book after 1988. In this connection it was pointed out that in the 1987 Edition of Advance Dermatologic Therapy, authors of which were Walter B. Shelly and E. Dorinda Shelly, there was no mention of the term "Toxic Epidermal Necrolysis". In Fitz Patrick's Dermatology in General Medicine 4th Edition 1983 page 596 in respect of therapy for Toxic Epidermal Necrolysis it is written, "See treatment above for E.M. (Erythima Multiforme) Major." Reference was also made by the learned counsel of both sides to different textbooks, journals and other comments to analyse the disease TEN.
62. After a careful scrutiny of all these textbooks, journals and other materials produced, it appears that drugs are the primary cause of TEN, that the most common offenders are Sulphonamides, Penicillin, NSAIDS (non-steroidal anti-inflammatory drugs commonly used for Pain and Fever)" (According to Harrison's Principle of Internal Medicine 14th Edition page 320). It is already stated above that Dr. Kunal Saha admitted, at the time of admission of Anuradha Saha in the Breach Candy Hospital, that Anuradha had a number of drugs in Calcutta, such as Rovamycin, Roxythromycin, Ampicillin and Ampiklox and Nimesulide, from antibiotic to non-steroid anti-inflammatory agents. It is pointed out referring to Goodman's and Gillman's Pharmacological Basis of Therapeutics 10th Edition that Ampicillin and Cloxacillin belong to Penicillin group of drugs (pages 1193 and 1196). In the same book it is also indicated that Nimesulide is a Sulphur drug (page 716). It is also noted in Fitz Patrick's Dermatology in General Medicine 5th Edition page 645 that sulphur drugs are cited as most common trigger in all surveys and reviews. It is also stated above that on 13.5.1998 when Dr. Kaushik Nandy wrote the prescription he detected that the affected body surface area was from 25-30%. So at the time of examination of Anuradha on 12.5.1998 it was a borderline case of SJS-TEN. Or in other words, it can be said that at best it was an early stage of TEN, and not full-blown TEN as claimed by Dr. Saha.
63. It is pointed out that neither in the petition of complaint nor in the deposition of the witnesses it is mentioned that the patient had any complication from TEN before 17.5.1998. During the treatment of Anuradha at AMRI there was no indication of complications like hypovolemia, internal organ failure, infection of septicemia. On 11.5.1998, Dr. A.K. Ghosal did not mention about any complication. Dr. Balaram Prasad under whom Anuradha was admitted claimed that the condition of Anuradha was stable from 11.5.1998 to 15.5.1998. His view in this regard is as follows : "Haemodynamically stable, fully conscious, vital organs are clinically functioning normally without any sign of dehydration and her intake and output are adequate, not deficient in nutrition and no electrolyte imbalance, tongue was moist". In the report of Breach Candy Hospital on 17.5.1998 and 18.5.1998, it was indicated that the patient was 'haemodynamically stable.'
64. Admittedly Prof. Halder is a renowned Dermatologist at Calcutta with numerous publication and teaching experience. He prescribed a certain treatment on 12.5.1998 according to the clinical manifestation of the patient on that date. In this connection, it is also to be noted from the materials on record that TEN is a rare disease and its mortality rate is very high. In Fitz Patrick's Dermatology in General Medicine, 5th Edition, page 651, it is stated that "controlled prospective treatment studies are absent, as are generally accepted guidelines" in the management of TEN. It is also viewed that "it is impossible at present to correlate any particular therapeutic measures with the outcomes reported". It is also to be noted that none of the witnesses examined in this case had any prior experience of treatment of TEN. Similarly Dr. Kunal Saha also admitted that he had no prior experience as regards the treatment of TEN and he expertised on the subject after the demise of Anuradha. But he had no experience of treating any TEN patient.
65. According to Fitz Patrick, "treatment has to be individually tailored according to cause, type and stage, and presence and type of complications". So there cannot be a fixed regime that is applicable to all stages of TEN. It is also clear from the materials on record that TEN may progress rapidly claiming even the life of the patient or slowly or progression may be halted at any point of time with recovery. So management of TEN is tailored according to this dynamic process. Practically there cannot be any 'universal treatment protocol' of TEN as claimed by Dr. Kunal Saha. Dr. Halder also replied in his examination under Section 313 that "there is no universal protocol for the treatment of TEN". So management of TEN is to be done on the basis of the condition of the patient on a particular day. There is also necessity of keeping constant watch on the condition of the patient inasmuch as TEN aggravates suddenly or abruptly.
66. It is already stated above that in the prescription of Prof. Halder it is indicated that he had reason to suspect that the patient had taken some drug that induced TEN. The prescription also indicates that he not only examined the patient from dermatological standpoint but also examined patient's eyes and lungs inasmuch as those are the other organs commonly involved in such type of disease and he commented NAD, that is, no abnormality detected. Prof. Halder also took the family history indicating "Father - Diabetic".
67. The main attack on the prescription of Dr. Halder is his choice of Prednisolone 40 mg. thrice daily. It is indicated in Fitz Patrick's Dermatology in General Medicine that in TEN "Glucocorticoids may in fact curb disease progression". It is also indicated that Prednisolone is a Gluococorticoid, According to Goodman and Gillman also Prednisolone is considered to be a Gluococorticoid and it was indicated that Prednisolone and Prednisone can be considered same for all clinical purposes. In Dermatology 2nd Edition. Braun Falco et.al. 1991, it is indicated that management of TEN is begun with Prednisone 120 to 250 mg. daily or the equivalent daily dose of other steroid. Dr. Kunal Saha also admitted (part 1 vol. I page 180) if Anuradha was treated with Prednisolone instead of Depo-Medrol, there would have been a chance for her survival today. So starting of treatment of TEN with Prednisolone is generally accepted and practically there is nothing on record to show or indicate that prescribing Prednisolone by Prof. Halder was the cause of the death of Anuradha. It was argued on behalf of the respondent that knowing fully well that Depo-Medrol 80 mg. twice daily for few days were injected, Prof. Halder should not have suggested a total dose of 120 mg. of Prednisolone on 12.5.1998. It is already stated above that the onset of TEN on Anuradha was from the night of 11.5.1998 when Dr. Ghosal did not stop Depo-Medrol. But Professor Halder after examining Anuradha stopped Depo-Medrol and it is rightly argued that he followed Braun Falco and also Fitz Patrick in fixing the dose. In both these texts it is indicated that corticosteroid for TEN can be started with 120-150 mg. Prednisolone daily by mouth or equivalent relative dose of other steroid. Dr. Kunal Saha also stated that 4 mg. Methyl Prednisolone is equivalent to 5 mg. of Prednisone. He also admitted the view of Dr. J. S. Pasricha, whom he considered to be an expert in India in this field, that the selection of dose of corticosteroid is arbitrary and depends upon the severity of the reaction, but it is preferably to be on the higher side of the dose because of quick control of TEN is vital for saving the patient (part 1 vol. I of page 189). Fitz Patrick also viewed "................ Methyl Prednisolone per day by mouth for several days until disease progression has ceased. Doses ought to be tapered quickly but cautiously since no further benefit can be expected thereafter and the untoward effects may then predominate" (page 651). So dose adjustment is necessary keeping in view the changes in clinical status Prof. Halder in his reply under Section 313 of the Cr.PC claimed that he wanted feedback from Dr. Kunal Saha on the next day for adjusting the dose. But there is nothing on record to show or indicate that any feedback was given to Prof. Halder. Even there is no direct evidence that Prof. Halder after 12.5.1998 had any occasion to examine Anuradha. Dr. Balaram Prasad also claimed that Prof. Halder examined the patient and issued prescription only on one day. So excepting the writing of the prescription practically Prof. Halder had no role to play in the treatment of Anuradha as is quite evident from the record of AMRI. Even in the treatment-sheet of AMRI, there is no indication that prescription of Prof. Halder was given effect to.
68. In this connection scanning the evidence on record and also the prescription of Prof. Halder, it was argued that he suggested proper treatment along with supportive therapy to prevent the adverse effect of steroid by prescribing other medicines like Zinetac (for preventing Peptic Ulcers), Menabol (for counter-acting catabolic effect and Osteoporosis by user of Prednisolone), Pot Chlor (Potassium in case of treatment of Prednisolone), Shelcal (Calcium for decreasing the rate of early Glucocorticoid induces bone loss), Fusys (Flucanazole for preventing fungal infection).
69. Similarly to combat infection or to prevent Sepsis Prof, Halder advised Claribid (Prophylactic Antibiotic). He also suggested Betadine which is a strongly Antiseptic against Bacteria with less side effect along with Tulle dressing (a close-meshed net cut into squares with soft paraffin used in treating raw surfaces). But from the evidence of Dr. Kaushik Nandy, it is clear that Betadine was not followed at the direction of Dr. Balaram Prasad and Dr. Kunal Saha who decided that no anti-bacterial agent was to be used as dressing of the patient. On the other hand, it appears from the materials on record that Occlusive dressings were carried out thereby increasing the risk of infection. Prof. Halder also suggested Benadryl Syrup as there were erruptions inside the mouth. The P.W.2 Dr. Kunal Saha, on the plea that Dr. Halder was trying to anesthetize the mouth so that the patient to be fed orally, disapproved its user. Dr. Halder also suggested eye care by 'Cortisone Kemicetin eye ointment', but steroid based Neomycin Antibiotic was prescribed by the consultant Opthalmologist Dr. S. Bhattacharyya on 12.5.1998 though Prof. Halder advised in special precaution column of his prescription to avoid Neomycin and Soframycin which are common causes of drug allergy. So the treatment suggested by Prof. Halder was not followed.
70. Similarly the nutritional support indicated in the prescription of Dr. Halder was criticized in course of the argument alleging that it was not at all given for nutritional support. But it was argued that all were suggested following the Clinical Dietetics and also following Fitz Patrick for high calory protein diet.
71. It is also to be noted that Prof. Halder suggested with the head "Important Electrolyte balance nutrition, prevent secondary infection". When Dr. Kunal Saha was confronted with this suggestion of Prof. Halder, his reply was "I really have nothing to say to this". It is argued that Prof. Halder prescribed all the essential nutrients and that the high calorie protein diet he suggested was not spicy so that the patient could take it and digest it easily. It is also argued that for stoppage of Systemic Toxicity, Prof. Halder advised "avoid local anesthetics". But it appears that on 13.5.1998, Dr. K. Ahmed prescribed a local Anesthetics like Xylocaine Viscous. So it is to be noted that all the important suggestions of Prof. Halder were not scrupulously followed.
72. It was argued that Prof. Halder did not suggest Nasogastric tube feeding and Intravenous fluid which was necessary for a patient of TEN. Dr. Prasad in his evidence admitted that Anuradha could take food and liquid by mouth and she was able to swallow liquids. The learned counsel appearing on behalf of the appellant doctors pointed out that the routine placement of Nasogastric and Intravenous fluid in each and every case of TEN as an emergency management, as suggested by Dr. Saha, was not approved in the Textbook of Fitz Patrick and Braun-O-Falco. Prof. Halder in his examination under Section 313 clarified that the patient having denuded skin too much of interference by pricking needles was likely to cause secondary infection. He also pointed that the condition of patient on 12.5.1998 did not indicate any need of IV Fluid replacement or Nasogastric feeding. It is clarified that IV catheters have always been considered as a portal of entry of Bacteria. It is also argued that treatment of Anuradha having not been suggested in Burn Unit, Prof. Halder did a great mistake thereby giving an adequate chance of infection. But referring to Fitz Patrick, it is argued that it is not generally necessary in SJS-TEN patients to treat in a specialised burn centre. It is necessary only in exceptional cases and Dr. Kunal Saha also admitted this fact (part 1 vol. I page 177). He also stated there "I must mention the complaint against the accused doctors is not for not using a burn centre". So it is clarified that adequate supportive therapy was proposed by Dr. Halder on 12.5.1998. But the materials on record indicate that the same advice was not translated into action due to active interference by other doctors including Dr. Kunal Saha.
73. So from the above discussion, it is clear that Anuradha was treated by several doctors from 3.4.1998 till his admission at AMRI on 11.5.1998. It is also discussed that the prescription dated 7.5.1998 of Dr. Sukumar Mukherjee was not stringently followed and till her admission at AMRI on 11.5.1998 Anuradha was being treated by other medicines suggested by other doctors. It is also discussed hereinabove that on 11.5.1998 Dr. Mukherjee gave certain suggestions before his departure from India to USA for a long period of three weeks and accordingly, suggestions of other doctors were taken. It is also clear that Prof. Halder after examining Anuradha gave a prescription on 12.5.1998 but it was not followed due to the intervention of other doctors including Dr. Kunal Saha and. Dr. Balaram Prasad. It is also interesting to note that on 15.5.1998 Dr. Prasad took the decision of following the prescription of Dr. Mukherjee. Actually at whose instance such a view was taken is not clear. Though Dr. Balaram Prasad tried to say that he did so on the advice of Prof. Abani Roychowdhury, but from the evidence of Dr. Prasad it is clear that till 15.5.1998 he was neither following the prescription of Dr. Sukumar Mukherjee nor he was following the prescription of Prof. B. Halder.
74. In this connection, the learned counsel for the appellant doctors pointed out that the entire treatment of Anuradha at AMRI was under the care of Dr. Balaram Prasad. From the evidence of Dr. Prasad it is shown that on getting suggestion from different doctors he gave his final verdict as regards the treatment to be followed as is generally done by the Physician-in-Charge. It is also pointed out from the materials on record that from the inception of the treatment of Anuradha, Dr. Kunal Saha actually took the active part as regards selection and methodology of treatment. Thus it is shown that though on 7.5.1998 Anuradha was taken to Prof. Sukumar Mukherjee who wrote a prescription for her but she was treated by other physicians including Dr. Sanjoy Ghosh and Dr. A.K. Ghosal. This fact also admitted by Dr. Prasad alleging that "the patient party told me that the patient had been treated at home by .......... Dr. A.K. Ghosal.
75. It is also pointed out that various other medicines were administered on Anuradha which had never been prescribed by the accused doctors. This is evident from the history sheet record at Breach Candy Hospital which is discussed hereinabove. In the history sheet of Breach Candy Hospital it is already discussed that at the time of admission Dr. Saha while giving the history of the treatment, admitted that Anuradha was treated with Nimesulide. In the said history sheet it is indicated "allergy to sulphar drugs". So the drugs indicated by Dr. Kunal Saha at the time of admission at Breach Candy Hospital from antibiotic to non-steroidal anti-inflammatory agents were not prescribed by the accused doctors. It is to be noted that Dr. Kunal Saha did not disclose intake of such drugs even to Dr. Balaram Prasad who in his prescription doubted whether it was a drug allergy.
76. It is also clear from the records of AMRI and the evidence adduced by the prosecution and the defence witnesses that even at the time of admission of Anuradha at AMRI Dr. Kunal Saha continued with his manoeuvering of the treatment of Anuradha. The prescription of the specialists including the appellant doctors were not scrupulously followed and the same were unilaterally and without reference to them varied and/or modified at the behest of Dr. Kunal Saha. Few of the instances given are as follows :
(i) Dr. Balaram Prasad (P.W.3) under whom the patient was admitted stated that on the date of admission he was directed by Dr. Saha to administer Depo-Medrol on Anuradha.
(ii) Dr. A.K. Ghosal was also summoned by Dr. Balaram Prasad at the directive of Dr. Kunal Saha. Dr. Balaram Prasad advised for skin biopsy. Dr. Nasir Iqbal, a Consultant Surgeon, in his evidence stated that "I came to know that patient's husband and patient were not interested to undergo skin biopsy."
(iii) The P.W. 3 also stated "on. 17.5.1998, I found to my surprise that the patient had left for Bombay at their own risk ...................".
(iv) The Nursing Superintendent at AMRI, Ms. Sutapa Chanda (D.W. 3) stated "I did not spend much time in Anuradha's cabin since Dr. Saha did not allow us to attend Mrs. Saha for a long period. Dr. Saha restricted such stay".
(v) Ms. Sutapa Chanda also stated "all instructions for medication in Ext. 8 were carried out by Kunal Saha find not by my nurses.
(vi) The D.W. 2, Dr. Kaushik Nandy, a Plastic Surgeon who attended Anuradha at AMRI also stated "On 15.5.1998 and 16.5.1998, I went to the patient for the purpose of change of dressings. However, consent for change of dressings could not be obtained."
(vii) Dr. Nandy also stated "On 17-5-98, I was told that the patient was going to be taken away from AMRI by Chartered Flight. Therefore, I attended her in the morning, but dressings change was initially refused. However, I strongly felt that change of dressings was absolutely essential because the change of dressings has not taken place for previous two days and also because the patient was going to be taken away from AMRI to be transported elsewhere. Eventually, a compromise was agreed to. On my advice, the stretcher on which she was to be transported to the Chartered Flight was brought to her room in AMRI. Dressing change was, carried out with an important difference i.e. though she was covered with a layer of Jelonet sterile gauze and gamjee pads Dr. Saha did not agree that the dressings be held in place with gauze bandages. The reason given being that when she was transported to Bombay, she would require a dressing change again on the same day, because the doctors would like to have a look at the wounds .................".
(viii) Dr. K. Nandy ignoring the advice of Dr. Halder "to use Tulle dressing" used Occlusive Jelonet and Gamjee pad dressing without using local anticeptic drug like Betadine with the consultation of Dr. Kunal Saha and Dr. Balaram Prasad.
(ix) The cash memos clearly show the discrepancy in the medicines prescribed by the appellant doctors and the medicines like Bactroban Ointment, Efcorlin (one kind of steroid), Sofratule purchased on 12th, 13th and 16th of May, 1998 at stages were not prescribed by the appellant doctors.
77. It is also clear that since Dr. Kunal Saha staying inside the cabin of Anuradha was looking at the administration of different medicines, the treatment sheet of AMRI was not properly filled up indicating what medicine was administered at what point of time. Dr. Kunal Saha was undoubtedly a doctor. But it is clear from the materials on record that ignoring the prescription of the doctors as well as the advice of other doctors, the entire treatment was done by him from 3.4.1998 till Anuradha was taken to Bombay on 17.5.1998. It is always a great risk on the part of the doctor to treat critical ailment of his own or the members of his family, but this accepted principle was not followed by Dr. Kunal Saha and he took upon himself a great risk of controlling the treatment of Anuradha without placing full reliance on the physician-in-charge and/or on the treatment protocol as suggested by the senior Professors like Prof. Sukumar Mukherjee or Prof. Baidyanath Halder. Be that as it may, it is sufficiently clear from the evidence on record that the advice of Prof. Sukumar Mukherjee or Prof. Baidyanath Halder were not followed so long Anuradha was at Calcutta.
78. It is argued on behalf of the complainant that Prof. Abani Roychowdhury also took active part in the treatment of Anuradha. It is also alleged that Prof. Roychowdhury, and Prof. Halder jointly examined the patient and the entire treatment of Anuradha from 12.5.1998 till 17.5.1998 were done at their advice. So it is argued that Prof. Roychowdhury is also equally liable for the untimely death of Anuradha and he is also required to be found guilty like the other two accused doctors. Practically the revisional application against his order of acquittal was filed for this purpose. So let it be considered actually what part was played by Prof, Roychowdhury in the treatment of Anuradha. It is argued on behalf of the complainant that Prof. Roychowdhury was the principal physician in the treatment of Anuradha so long she was treated at AMRI from 12.5.1998 to 17.5.1998. It is argued that though Anuradha was admitted under, Dr. Balaram Prasad, but Prof. Roychowdhury took active part in the treatment of Anuradha. It is pointed out scanning the evidence of PW 1, Malay Ganguly that the prescription dated 12.5.1998 was written by Dr. Halder after a joint discussion with Dr. Roychowdhury. Dr. Kunal Saha also stated that the prescription was the result of joint consultation between Dr. Halder and Dr. Roychowdhury. The PW 5, Dr. Anil Kumar Gupta also deposed to suggest that the prescription was a joint prescription of the said two doctors.
79. Dr. Halder in his examination under Section 313 stated that he wrote the prescription of his own after examining the patient, Anuradha. There is nothing to show or indicate that Dr. Halder while writing the prescription had any discussion with Dr. Abani Roychowdhury. It is admitted by Dr. Kunal Saha (page 220 part 1 vol. I) that at the bottom of the prescription dated 12.5.1998, Dr. Saha himself gave endorsement that the prescription was a joint prescription of Dr. Halder and Dr. Roychowdhury. So the said writing by Dr. Kunal Saha does not prove that it was a joint prescription. On the other hand, it is argued on behalf of the appellant doctors that the said writing of Dr. Kunal Saha on the consultation record (Annexure 'C' to the complaint) was a forgery for the purpose of creating evidence against Dr. Abani Roychowdhury. Of course, it was tried to be argued on behalf of the complainant that Dr. Saha made the endorsement for identifying the prescription for his counsel.
80. The learned counsel appearing on behalf of the complainant, however, contended that Prof. Roychowdhury admitted that he visited AMRI in outdoor on every Tuesday. It is also shown from his statement that 12.5.1998 was a Tuesday. A suggestion was given to the PW 2 that Prof. Roychowdhury saw Anuradha only for giving his blessings as required by his student Dr. Kunal Saha. Prof. Roychowdhury did not deny specifically that he had no occasion to see Anuradha. So from the evidence on record, it is sufficiently clear that on 12.5.1998 which was a Tuesday Prof. Abani Roychowdhury saw Anuradha. But there is nothing to show that Prof. Halder and Prof. Roychowdhury jointly examined Anuradha or prepared the prescription jointly. So it is not proved that prescription dated 12.5.1998 was written jointly by Prof. Roychowdhury and Prof. Halder.
81. The PW 1 and the PW 5 claimed that they had been to the residence of Dr. Roychowdhury on 11th and 13th of May, 1998 to obtain advice. They also admitted that Prof. Roychowdhury did not write any prescription. Dr. Balaram Prasad on 12.5.1998 wrote in the treatment sheet of AMRI "to continue as advised by Prof. Sukumar Mukherjee/ Dr. Abani Roychowdhury". It is already discussed above that Dr. Sukumar Mukherjee before his departure for USA gave advice to consult Prof. Abani Roychowdhury and also the Dermatologist. So Dr. Mukherjee's advice without his further support/consent should not have been followed on 15.5.1998. Moreover the prescription of Dr. Mukherjee is undoubtedly different from the prescription of Prof. Halder. Even if any view of Prof, Roychowdhury was taken on 12.5.1998 or thereafter, it must have indicated stoppage of Depo-Medrol. So how the contradictory advice of Dr. Mukherjee and Dr. Roychowdhury could be followed on 15.5.1998 is not clear. One had prescribed Depo-Medrol and the other was in favour of the stoppage of the same. The PW 3 Dr. Balaram Prasad on this score stated that there was no prescription of Dr. Roychowdhury and there was also no record that Dr. Roychowdhury gave any advice. It was simply claimed that the RMO told him that Dr. Roychowdhury gave the advice. Since the RMO had not been examined in this case, this part of evidence of Dr. Prasad is inadmissible and cannot be relied upon in view of the decision of the Apex Court in Yaniz Gulam v. State of Maharashtra, and Bhugdomal v. State of Gujarat, . The PW 3 admitted that whoever the doctor examined Anuradha, his name appeared in the bed head ticket. But he also admitted that in the bed head ticket, there was no record of any advice or prescription of Dr. Abani Roychowdhury. It is also clear from the evidence of Dr. Prasad that he did not convey to Dr. Roychowdhury that Dr. Sukumar Mukherjee had made a request to Dr. Roychowdhury to see the patient nor he had any knowledge as to whether the RMO had conveyed the same to Dr. Roychowdhury. The endorsement of 15.5.1998 was also not his conscious writing.
82. In this connection it is also to be noted that few of the PWs. claimed that they sought the advice of Dr. Roychowdhury and also received the advice. But what was the advice has not been clarified. Dr. Kunal Saha, PW 2, on this score stated that it was for the doctors of AMRI to say whether the advice was followed or not. Even if it is presumed that the ex-student of Prof. Roychowdhury took certain views from him, but it does not indicate that the treatment of Anuradha was undertaken by Prof. Roychowdhury. There is also no evidence to show actually what treatment was given by Prof. Roychowdhury. It appears that the learned Chief Judicial Magistrate took into consideration all these aspects and came to a decision that Dr. Roychowdhury did not treat Anuradha nor took any part in the treatment of Anuradha.
83. The undertaking of treatment of a patient is a very specific act and from the AMRI record, it is clear that in the AMRI, Calcutta, Anuradha was admitted under Dr. Balaram Prasad who was also a consultant physician having Post-Graduate Degree. There is nothing on record to show or indicate that any Medical Board was constituted for the treatment of Anuradha. On the other hand opinions from different doctors were collected. But ultimately the treatment schedule was fixed by the treating doctors. It appears that Dr. Balaram Prasad also dared to claim that he was the physician-in-charge of the treatment. On the other hand, the interference in the treatment by Dr. Kunal Saha as discussed hereinabove are sufficient to indicate that the treatment of Anuradha was monitored by Dr. Kunal Saha alone and nobody else.
84. In this connection it is also to be noted that the PW 1, PW 2 and PW 5 claimed that Anuradha was removed to Bombay for better treatment at the advice of Prof. Roychowdhury and Prof. Halder. 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" was not written by Prof. Halder and it came out in course of evidence that that writing is an interpolation in the certificate at the hands of others other than the appellant doctors. Dr. Balaram Prasad also admitted that the term 'better treatment' was not written by Prof. Halder. So the said certificate of Dr. Halder was forged by the patient party for the purpose of taking Anuradha to Bombay. It is clarified that as his ex-students requested him for issuance of a certificate to that effect for carrying Anuradha to Bombay, Prof. Halder issued it in good faith knowing fully well that without a clearing certificate a patient could not be removed to another place by a Flight. There is no evidence that before taking the certificate it was disclosed before Prof. Halder that Anuradha was going to be removed by a Chartered Flight. The Chartered Flight was made for carrying the patient alone and as such, nothing has been produced in support of the claim that the required certificate was necessary for carrying a patient by a Chartered Flight. Be that as it may, the forged certificate practically demolished the prosecution story that at the advice of Prof. Halder or Prof. Roychowdhury, the patient was taken to Bombay "for better treatment". On the other hand, the endorsement of the complainant in the record of AMRI indicates that they took discharge of Anuradha at their own risk.
85. It is argued that if the treatment of Anuradha as advised by the Calcutta doctors were followed, the death could have been avoided. It is also contended scanning the evidence of Dr. Udwadia (PW 10) and referring to the records of Breach Candy Hospital that there was possibility of infection in course of transportation of Anuradha from AMRI by an Ambulance and thereafter, by the Chartered Flight and again by an Ambulance at Bombay. The evidence on record also indicates that till the evening of 18.5.1998, the dressing of Anuradha was not changed. It is already discussed above that at the time of releasing Anuradha from AMRI, Dr. Kunal Saha did not allow Dr. Kaushik Nandy to change the dressing to the satisfaction of Dr. Nandy mainly on the ground that there would be change of dressing at Bombay. So by removing Anuradha from Calcutta to Bombay the patient party took upon themselves a great risk of infection in course of transit knowing fully well that infection was very common at that critical stage of a patient. Practically the Calcutta doctors had no hand in shifting Anuradha from Calcutta to Bombay.
86. So from the above discussion, it is clear that in the midst of treatment of Anuradha the patient party abruptly had taken her to Bombay at their own risk and placed her in an uncertain condition. It is also discussed above that the advice of Prof. Mukherjee was not followed entirely nor the advice of Prof. Halder was carried out in action. Prof. Roychowdhury also did not take any part in the actual treatment of Anuradha. In the backdrop of all these facts, it is necessary to consider whether the three doctors are to be found guilty for commission of an offence under Section 304A of the Indian Penal Code.
87. It appears from the judgment of the Trial Court that full reliance was placed on the evidence adduced on behalf of the complainant and the argument made for finding out the guilt of the accused Prof, Sukumar Mukherjee and Prof. B. Halder. The logic given in the judgment dated 29.5.2002 virtually accepted the grounds made out in the application filed in February 1999 by Dr. Kunal Saha before the Hon'ble National Consumer Disputes Redressal Commission (Ext. 17) after serving notice dated 23.9.1998 on the parties. It is to be mentioned that the present complaint was filed on 17.11.1998 that is within six months from the date of death of Anuradha. Dr. Kunal Saha (PW 2) claimed that immediately after the death of his wife, Anuradha, he studied the subject and became an expert in TEN and practically the knowledge he collected during this period prompted him to file the complaint alleging that Anuradha died due to the maltreatment at the hand of Dr. Sukumar Mukherjee followed by Prof. Baidyanath Halder and Prof. Abani Roychowdhury.
88. In course of hearing of these appeals and applications, the learned counsel appearing on behalf of the complainant practically placed reliance on the materials collected by Dr. Kunal Saha in course of his study in the subject. The materials collected by Dr. Kunal Saha which were also relied upon by the Trial Court indicate that the main cause of death of Anuradha was the rash and negligent act of Prof. Mukherjee when he prescribed Depo-Medrol 80 mg IM B.D. for three days without diagnosis of the disease and without caring the package insert or product brochure of the drug Depo-Medrol. It is argued that if Depo-Medrol in such a high dose was not administered, there was no possibility of earlier Immune Suppression. It is argued that the Immuno Suppression was the direct and proximate cause of Septicemic Shock of Anuradha. It is also argued that though Dr. Baidyanath Halder stopped Depo-Medrol but by prescribing Prednisolone 40 mg. thrice daily, practically continued the serious risk of Immuno Suppression. It has been argued that Depo-Medrol and Prednisolone are close cousin of each other as 4 mg, of Depo-Medrol is equal to 5 mg. of Prednisolone. It was also argued that due to such Immuno Suppression, Septicemia can occur and actually Anuradha died of Sepsis/Septicemic shock. But it appears from the different textbooks and journals relied upon by both the parties that TEN is a serious drug-related disease and it has high mortality rate, if not treated promptly. It also appears that for the last few decades, research on TEN started and towards the second-half of the last century, consciousness about TEN developed amongst the medical practitioners of USA and subsequently it also attracted other experts of the European countries. It is indicated that in the Creteil Conference at France a decision was taken that Depo-Medrol should not be used in full-blown TEN, Though the decisions taken in this Conference are not produced but it appears that the treatment of TEN was a question before that Conferences. It is also clear from the opinion of the different experts in the field as produced before the Court that TEN may start gradually or abruptly. So it may have a nascent stage, half-blown stage or fullblown stage. It is clear that TEN is a disease, but at places it has been described as a dermatological disorder. It is also admitted in the application filed before the Hon'ble National Consumer Disputes Redressal Commission by Dr. Kunal Saha that the onset of TEN 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 rash starts systematically on the face and in the upper part of the trunk and rapidly extends. Frequently, the initial manifestation may be extensive Scarlatiniform Erythema. It is also admitted that because of its many similarities to SJS, TEN is often considered most severe form of the so-called Erythema Multiforme Spectrum.
89. It is clear from the materials on record that TEN is not a very common disease and it is a rarest of rare cases in India. There is no evidence that any of the doctors deposed in this case ever treated a TEN patient. It is already discussed hereinabove that Dr. A.K. Ghosal who examined Anuradha between 8th and 9th of May, 1998 and also on 11.5.1998 considered it to be a case of TEN and the description given indicates that it might have been an early stage of TEN. Dr. Ghosal has not been examined to prove that Anuradha was actually attacked by TEN and from which point of time. True it is that Prof. Halder considered it as a case of TEN, but he being an accused, reliance on such claim should not be given without any supportive evidence. Dr. Udwadia who treated Anuradha at Breach Candy Hospital never claimed himself as a Dermatologist. Dr. Keshwani under whom Anuradha was admitted at 9-20 P.M. on 17.5.1998 in the Breach Candy Hospital was not examined in this case to ascertain as to how he considered the case as TEN.
90. In this connection, it would not be out of place to mention that the treatment at Breach Candy Hospital was also done at the interference of Dr. Kunal Saha. Dr. Saha claimed that the patient was suffering from TEN which was a dermatological disease, but Anuradha was admitted by him under a Plastic Surgeon, Dr. S. Keshwani. It is also indicated how at the initial stage Dr. Saha gave instructions to the doctor on 17.5.1998 without accepting the treatment suggested by the attending doctors at Breach Candy Hospital. On 18.5.1998 it is indicated in the records of Breach Candy Hospital "they are understandably upset and anxious but rather difficult to deal with because of a manner which is both aggressive and condescending". On 18.5.1998, it was also written "the brother-in-law has brought a new quinolone antibiotic from the U.S.A. as highly recommended for infection. I have never used the drug and totally unfamiliar with it and feel that we should use drugs we are familiar with". But on 26.5.1998, it was indicated "A new quinolone introduced with stoppage of Imepenim and Vancomicin". On 19.5.1998 it was also written "nutrition withheld on request of relatives".................. "there is great deal of advice offered by the doctor, brother-in-law I have listened to it all. The following differences need to be highlighted --
1) He was claiming of blood transfusion.
2) He was advising the use of Erythropoietin.
3) He was keen on immediately giving a Tonic supplement".
91. Similarly on 20.5.1998 it was written in the daily orders of Breach Candy Hospital "Have had great problems with Dr. Saha, the brother-in-law. It is with great difficulty that I have controlled myself. When presented with his arrogance and condescend--merely and solely for the patient's sake. To keep peace I have compromised on the following .................". (page 272 vol. IV). Here it was indicated how the attending physicians had to accept the suggestion of Dr. Saha. At the end of that page, it was noted "the residents and nursing staff are in deep distress for obvious reasons. I have asked them to bear up and look at the patient's interest and to keep focused solely on patient care". On 20.5.1998, prior to this writing it is indicated "the nasogastric feeds were unfortunately interrupted by doctor, brother-in-law for fear of aspiration". On 21.5.1998 it was also written "would ordinarily have been placed her in ICU but in both medical and surgical ward there are grossly infected cases with bad, open infected wounds and the rate of nasocosmal infections in the ICU inspite all precautions is forbiddingly high (10-11%). At this point in time, there is no one, we can safely shift out of ICU. ICU rules, do not permit relatives, even if they are doctors to be constantly present with the patient and thus, under the circumstances, is not going to be feasible as both husband and brother-in-law are keen to be with her all the time .............. It has however been pointed out that in case patient needs ventilatory support, we will have to shift her in the ICU in spite of the above circumstances". The records of Breach Candy Hospital of 22.5.1998 also indicates that "though the attending physician suggested to book a call for the medical doctor on duty, in view of the breathlessness of the patient, but Dr. Saha did not allow it to be done and throughout the night, Dr. Saha and his brother-in-law observed the patient and in the morning left the room at 5-15 A.M. (pages 293 and 378 of Vol.IV).
92. All these facts are sufficient to indicate that the diagnosis of the disease and the follow-up treatment were done at the direct supervision of Dr. Kunal Saha and his brother-in-law, that is the complainants. It is already indicated hereinabove that such was the position at AMRI also. It is also discussed hereinabove that the entire treatment at Calcutta was not entrusted to any particular doctor. On the other hand, there are indications that the full period of treatment from 3.4.1998 till her discharge on own risk from AMRI on 17.5.1998 was controlled by Dr. Kunal Saha and his friends. It is also evidenced by the doctors deposed in this case and also by the accused doctors while replying the questions put to them under Section 313 Cr.PC that the friends of Dr. Kunal Saha who are students of all these accused professors practically, contacted with them as regards the ailment of Anuradha. But surprisingly enough neither Dr. Kunal Saha nor his doctor friends placed full reliance on the advice of any of the three professors, two in the field of medicine and one in the field of dermatology. Even after the death of Anuradha neither Dr. Kunal Saha nor the complainant had any doubt about the cause of death nor they thought the death to be unnatural for which no attempt was made for post-mortem examination as already discussed. So excepting the prescription of Prof. B. Halder which he admitted to be written on 12.5.1998, there is no direct evidence from any of the dermatologists that Anuradha was suffering from TEN. Moreover, the claim of the accused doctor is not supported by any other witnesses. It is also discussed hereinabove that Dr. Kunal Saha obtained views of different experts of the world. But the papers on the basis of which such opinions were obtained or how the experts considered the case of Anuradha as a case of TEN have not been fully clarified. Dr. Kunal Saha is not a Dermatologist and he never treated any TEN patient. The other doctors who deposed in this case on behalf of the prosecution had also no experience of treating a TEN patient. So at the risk of repetition the only logical conclusion is that the prosecution has not been able to prove that the death of Anuradha was unnatural or that she died of TEN.
93. But the fact remains that Anuradha was suffering from certain ailments with skin disorders, fever, sore throat etc., and it might have caused due to drug allergy or Chinese food allergy. Details of the treatment chart from 3.4.1998 till her admission to AMRI having not been produced, it is not possible to ascertain actually what treatment was followed and actually who was the treating doctor. Even if the prescription dated 7.5.1998 of Dr. Mukherjee is construed to be the prescription of a treating doctor, it is clear from the evidence on record that it was not scrupulously followed on 8th, 9th and 10th of May, 1998. It is also discussed hereinabove that excepting the administration of Depo-Medrol 80 mg. IM on 7.5,1998, there is no convincing evidence that the said injection as prescribed by Prof. Mukherjee was repeated twice on 8th, twice on 9th and once on 10th of May, 1998. On the other hand, it is already discussed above that even after admission of Anuradha at AMRI on 11.5.1998, Depo-Medrol was injected at the insistence of Dr. Kunal Saha. It is also clear that during the entire period of treatment, at Calcutta, it is not possible to fix the responsibility of such treatment on any doctor. The evidence also indicates, as is also discussed hereinabove, that the treatment as prescribed by Prof. Mukherjee or by Prof. Halder was not followed and no faith was reposed on their treatment. On the other hand, there was interference with their advice. Even Dr. Balaram Prasad had to admit that the treatment was done at the supervision of Dr. Kunal Saha. The Nursing Superintendent (DW 3) of AMRI also clarified that none of the nursing staff or the attending staff were allowed to administer any medicine on Anuradha inasmuch that was controlled and conducted by Dr. Kunal Saha. Dr. Kunal Saha has not produced any evidence to show or indicate that he was following the treatment of any doctor. On the other hand, the evidence clarifies that the sole responsibility of the treatment of Anuradha was shouldered by Dr. Kunal Saha and he did not allow anybody to administer medicine or to allow any supportive therapy. The evidence on record also indicates that none of the accused doctors ever advised 'for better treatment' of Anuradha at Bombay. On the other hand, the evidence is that on 16.5.1998 the complainant, Mr. Malay Kumar Ganguly made an endorsement in the records of AMRI "I am taking my patient at my own risk." There is no indication that the patient was discharged "for better treatment" at the advice of the accused doctors. The certificate dated 16.5.1998 issued by Prof. Halder is reproduced below :
"TO WHOM IT MAY CONCERN This is to certify that Mrs. Anuradha Saha, 36 years is suffering from Toxic Epidermal Necrolysis which is a non-infectious disorder. Her present condition can permit air-travel from Calcutta to Bombay".
Prof. Halder in his examination under Section 313 contended that this certificate was issued at the request of Dr. Kunal Saha and his friends who were his students. He denied the suggestion that he or Prof. Roychowdhury ever advised the shifting of the patient from Calcutta to Bombay for better treatment. It is admitted on behalf of the prosecution that the term 'for better treatment' at the end of the said certificate was an interpolation by others and not by Prof. Halder. This interpolation was consciously made by the patient party and it is already discussed above that on the basis of this forged document, the patient party managed to shift Anuradha from Calcutta to Bombay. But the evidence on record does not indicate that Prof. Halder ever advised shifting of the patient to Bombay. There is also no material to show or indicate that Dr. Halder after 12.5.1998 visited AMRI or he had any occasion to examine Anuradha after 12.5.1998. So the question of sending a patient from Calcutta to Bombay for 'better treatment' is a story built up by the prosecution for own purposes but not at the advice of Prof. Halder. The office record of AMRI also do not indicate that Prof. Halder ever visited Anuradha after 12.5.1998. Similarly there is no indication that Prof. Abani Roychowdhury also visited Anuradha for advising as regards her treatment after 12.5.1998. On the other hand, it is sufficiently indicated that Dr. Kunal Saha and his friends having Post-Graduate Degrees had the occasion to consult Prof. Halder and Prof. Roychowdhury but the final verdict as regards treatment was given by them. There is nothing on record to show or indicate that they followed the advice of any of these professors scrupulously. It is also discussed hereinabove that on 15.5.1998 Dr. Balaram Prasad decided to follow the prescription of Prof. Sukumar Mukherjee and Prof. Roychowdhury. So it was his decision, undoubtedly with the knowledge of Dr. Kunal Saha who was physically present by the side of Anuradha all the time. This endorsement of Dr. Prasad also indicates that the prescription of Prof. Halder was not followed.
94. In course of hearing of this appeal, an application being CRAN No. 1437 of 2003, along with a separate affidavit in CRA No. 84 of 2003 was filed on behalf of the complainant praying for taking into consideration a computerized list in which it is indicated that the accused doctors on different dates were contacted over the telephone. Prayer was made for marking the said documents as an exhibit. A similar application filed by Dr. Kunal Saha (CRAN No. 1294 of 2003), however, was not pressed as Dr. Saha was not a party in these proceedings. Such a prayer was also made before the Trial Court after close of the evidence and it was rightly rejected by the Trial Court. Even if these materials are brought on record, it will not prove that the treatment of Anuradha was being followed at the advice of the accused doctors. So I do not think that for the purpose of a just decision in this case, those papers are required to be brought on record after the close of the evidence of the parties. These petitions are liable to be rejected at this stage.
The treatment of a patient is a vital question and the patient party is required to follow the treatment protocol of the doctor under whom the patient is admitted. As soon as any interference with the treatment protocol suggested by a doctor is interfered with without his consent, the first doctor is absolved of his liabilities. The evidence on record is sufficient to indicate that the treatment protocol as suggested by Prof. Mukherjee and Prof. Halder were not followed and there was interference and as such, none of these two doctors can be held primarily responsible for the treatment of the patient. It is also discussed hereinabove that Prof. Abani Roychowdhury even if he visited the patient and gave any advice to the attending doctors, that advice was not reduced into writing and the note of 15.5.1998 as written by Dr. Balaram Prasad is sufficient to indicate that the advice of Prof. Roychowdhury, if any, was not followed inasmuch as from 12.5.1998 Depo-Medrol Injection was stopped. So it is not at all proved that on 15.5.1998 Prof. Roychowdhury gave any advice as regards Depo-Medrol Injection. Of course Dr. Balaram Prasad (PW 3) admitted that he had no direct discussion with Prof. Roychowdhury and from the RMO he gathered that Prof. Roychowdhury gave certain advice. It is already discussed that the said RMO has not been examined as a witness in this case and as such, no reliance can be placed on the endorsement that Dr. Roychowdhury gave advice on the treatment of Anuradha.
95. The learned counsel appearing on behalf of the complainant, however, contended that the senior consultants or specialists are not required to write a prescription, but from the circumstances it is to be deduced that the treatment was done by the accused doctors. Advice is something and translating that advice into action is completely different. Moreover, advice followed by purchase of medicine cannot prove the actual administration of the medicine unless it is specifically proved. In India the law on this score was not very clear. Practically there was no mandatory law or rules that could guide the doctors or the specialists. Even the patient party was not in a position to ascertain as to how a patient was being treated in a hospital or nursing home. The Indian Medical Council Regulation was amended long after the filing of the instant case and as such, the rules as regards the consultant physician was not applicable before the codification. There was also nothing in the Medical Council Act, 1956 or in the West Bengal Medical Council Act, 1914 to control the participation of the doctors in the treatment of a patient. The good side of the case filed by Dr. Kunal Saha is that the Apex Court of this country also considered this aspect and accordingly, the law was codified. But in spite of that, there are several gaps and lapses in itself. Here in a particular hospital or in the nursing home or in a private chamber of a doctor, system of keeping records of the patient containing the prescription of the doctors or advice of the specialists, details of the medicine purchased and actual administration of those medicines are not scrupulously maintained by authorised persons. Even house staff or junior doctors do not take any responsibility in the treatment of the patient. The licensed nursing staff can not be held responsible for not administering a particular medicine or a low dose of a medicine. Still now the entire system is that the doctor under whom a patient is admitted is held responsible. But if this problem is taken into consideration in the light of the principle adopted in other developed countries, it would be seen that an institution as a whole takes the responsibility and each and every item of the treatment is in black and white for which lapses at any point of time can easily be detected for fixing responsibility on a particular doctor or an attending staff. Similarly there is no rule by which the stay of patient party with the patient, even if he is a doctor or medical man, can be prohibited or opposed. The manner in which Dr. Kunal Saha stayed with the patient is undoubtedly opposed to the medical discipline. But a specific law in this regard is necessary prohibiting the stay of the patient party with the critical patient in course of continuance of the treatment. Be that as it may, after the filing of the instant case and its publicity through media has forced the law-makers to think in this line and it is expected that there should be appropriate law for proving the transparency in a particular treatment.
96. Two applications being CRAN No. 1443 of 2003 and CRAN No. 1444 of 2003 were filed on behalf of the appellants doctors for making the order of Medical Council as a part of the record. The said order is dated 18.6.2002 and on its basis, the West Bengal Medical Council found the accused doctors not responsible for the death of Anuradha. The learned counsel appearing on behalf of the appellants doctors tried to argue that the said judgment which reveals the opinion of expert body is required to be taken into consideration for finding out the guilt or otherwise of the accused persons. But the learned counsel appearing on behalf of the complainant, however, contended that the said order is an ex parte order and it has been challenged before the Apex Court which is pending for final disposal. Moreover, Section 1 of the Evidence Act prohibits the acceptance of the evidence of a Tribunal in Court. So it is contended that the Tribunal being only a Court of justice, and, Court being a Court of law and Court of justice, that ex parte decision of the Medical Council should not be taken into consideration. It is true that the said judgment of the Medical Council is the opinion of the experts in the medical field. But for the purpose of this criminal case, specially keeping in view the evidence already discussed, I do not think that any reliance is required to be placed on that judgment. Still now the law is that a criminal case is to be decided on the basis of the evidence adduced by the parties and the sole onus is on the prosecution to prove the case. It is already stated that the charge against the accused doctors is under Section 304A of the Indian Penal Code. So it is necessary to ascertain whether the prosecution has been able to prove that the cause of death of Anuradha is due to the rash and negligent act of the three accused doctors.
97. Negligence is a legal, not a medical concept. The prevailing idea is that "negligence is a tort, that is a civil wrong, that consists of a breach of a duty to use reasonable skill and care, resulting in damage. The four 'D's are the essentials of negligence : There must have been a Duty, a Dereliction of that duty, Direct causation and Damage. Regarding a doctor's duty, there can seldom be any doubt of his moral and professional duty. Regarding his legal duty, the position is not so clear. Certainly he has no legal duty to assist at an accident, and if he does so, he is, of course, liable, should he be negligent in the care he gives or the skill he displays." Once a doctor has accepted a patient for treatment of a particular condition, he has a legal duty to use reasonable skill and care that the patient no longer requires or no longer desires further attendance. Dereliction of duty assumed is the nub of negligence. In such a case the testimony of expert witnesses is crucial. Of course a Court of law can find a doctor negligent without expert witness. But it is desirable that the prosecution should produce expert witness for proving the dereliction of the duty. Direct causation can pose thorny questions and it is the main factor for proving a case under Section 304A of the IPC. The fourth 'D', that is 'Damage', is generally taken into consideration while considering the case of compensation by adopting principle of res ipsa loquitur. It is in the realm of tort. So it is pertinent to mention that in a criminal case, the standard of proof is undoubtedly superior in comparison to a case filed for compensation in Civil Court or for a civil wrong in tort.
98. It is already indicated hereinabove that the prosecution took upon itself the onus of proving that all the three doctors caused the death of Anuradha Saha by doing a rash and negligent act not amounting to culpable homicide by prescribing and treating the deceased with steroid drugs in an improper dose and at improper intervals. It is also indicated hereinabove that in Kurban Hossain's case (supra), the Supreme Court adopted interpretation of the Section 304A of the IPC as rendered by Sir Lawrence Jenkin in Emperor v. Omkar Rampratap (supra). On the basis of the principle adopted in Kurban's case, it was argued that the death must be the direct result of the rash and negligent act and it must be the proximate and efficient cause without the intervention of the negligence of another person. The same view was also followed in Suleman Rahiman v. State of Maharashtra, and Ambalal D. Bhatt v. State of Gujarat, . It was also argued that the rashness or the negligence must be shown to be proximate or efficient cause to the death of the victim, but it is also necessary that the rashness or negligence in order to be culpable must be of such high degree as to cross the boundaries of the civil law and become the subject-matter of the criminal law. Reference was made to the observation of Lord Atkin in Andrews v. Director of Public Prosecutions, 1937 (2) All ER 552 for showing the liability under the criminal law :
"Simple lack of care such as will constitute civil liability is not enough. For purposes of the criminal law there are degrees of negligence and a very high degree of negligence is required to be proved ......... Probably of all the epithets that can be applied 'reckless' most nearly covers the case............."
So it is argued that the degree of negligence which gives rise to a mere civil liability and the one for which criminal prosecution can be founded and a sentence under the criminal law may be imposed on the guilty person must be of a high degree of proof.
99. But the learned counsel for the complainant contended that the law decided in Kurban's case (supra) cannot be a good law after the famous case of Bhopal Gas Tragedy reported in 1996 SCC (Cri) 1124, Keshub Mahindra v. State of M.P. It was also argued that a three Judges Bench of the Apex Court in , Sulemon Rahiman v. State of Maharashtra, distinguished the principle adopted in Kurban's case. The learned counsel also contended that, 'proximate' means 'proximity, that is synonymous with approximate' (Oxford 10th Edition 1152). So the direct and proximate cause as argued by the complainant is to be construed as approximate cause of death. But the learned counsel for the appellant doctors placed reliance on the said decision of Suleman Rahiman (supra), para 11, which is reproduced below :
"Now let us turn to the decided cases. Dealing with the scope of Section 304A IPC Sir Lawrence Jenkin observed in Emperor v. Omkar Rampratap 1902(4) Bombay LR 679:
'to impose criminal liability under Section 304A IPC it is necessary that the death should have been the direct result of a rash or negligent act of the accused, and that act must be the proximate and efficient cause without the intervention of another's negligence. It must be the causa causans; it is not enough that it may have been the causa sine qua non that, in our opinion, is the true legal position."
100. The learned counsel for the appellant doctors rightly argued that a charge of professional negligence against a medical man is a serious one. It stands on a different footing to a charge of negligence against the driver of a motor car. The consequences in the case of a medical man would be far more serious. It would affect his professional status and reputation. As such the burden of proof would be correspondingly more onerous. A doctor cannot be held negligent simply because something went wrong. A doctor would not be liable for mischance or misadventure or for an error of judgment, in making a choice between two options available. A mistaken diagnosis is not necessarily a negligent diagnosis. It is rightly contended that even under the Law of Tort, a 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. Accordingly, to fasten criminal liability very high degree of such negligence is required to be proved.
101. Reference was made to Reo v. Minister of Health, reported in 1954(2) All ER 131, where Lord Denning observed :
"...............We would be doing a disservice to the community at large if we were to impose liability on hospitals and doctors for every thing that happens to go wrong. Doctors would be led to think of their own safety than of the good of their patients. Initiative would be stifled and confidence shaken. A proper sense of proposition requires us to have regard to the condition in which hospitals and doctors have to work. We must insist on due care for the patient at every point, but we must not condemn as negligence that which is only a misadventure.............."
102. It is to be mentioned that medical service confers great benefits on mankind but these benefits are attended by considerable risk factors. It is also true that benefits of medical service cannot be achieved without taking the risks.
103. In the present case, at the time of admission of Anuradha at AMRI, the patient party signed the admission paper considering this risk factor. There it was specifically indicated "I hereby agree and give consent to perform of such operation on my ward that may be considered necessary, to the administration of anaesthesia and to any type of investigation/treatment that may be advised by the doctor. I shall not hold the institute, its staff and/or doctor responsible for any consequence arising out of and in the courses of such operation..............". So being a doctor, Dr. Kunal Saha was also aware of this risk factor and readily signed the admission form.
104. In Wilsher Essex Area Health Authority, reported in 1988(1) All ER 871, it was held by the House of Lords that-where a plaintiffs injury was attributable to a number of possible causes one of which the defendant's negligence the combination of the defendant's breach of duty and the plaintiff's injury do not give rise to any presumption that the defendant had caused the injury. It was viewed that the burden remained on the plaintiff to prove the causative link between the defendant's negligence and his injury. The House of Lords took such a view in the context of a claim for damages in the civil law. So it is argued that in a criminal case, the burden would have been heavier on the complainant and the proof must be beyond reasonable doubt. So it is pointed that when the complainant himself alleges several factors including the alleged negligence of the accused doctors, it was incumbent upon the complainant to prove that the alleged negligence of the accused doctors was the ultimate cause of death of Anuradha.
105. The learned counsel also placed reliance in the judgment of the Apex Court in S.N. Hussain v. State of Andhra Pradesh, , for indicating the meaning of the two concepts, namely, culpable rashness and culpable negligence.
106. In Achutrao Haribhau Khodwa v. State of Maharashtra, , the Apex Court held:
"The skill of medical practitioner differs from doctor to doctor. The very nature of the profession is such that there may be more than one course of treatment which may be advisable for treating a patient. Courts would indeed be slow in attributing negligence on the part of a doctor if he has performed his duties to the best of his ability and with due care and caution. Medical opinion may differ with regard to the course of action to be taken by a doctor treating a patient, but as long as a doctor acts in a manner which is acceptable to the medical profession and the Court finds that he has attended on the patient with due care, skill and diligence and if the patient still does not survive or suffers a permanent ailment it would be difficult to hold the doctor to be guilty of negligence."
107. In AKERELE v. R., reported in 1943(1) All ER 367, the Privy Council referring to an earlier decision in R. v. B. Bateman, reported in 1925(94) LJKB 791, viewed :
"...............a doctor is not criminally responsible for a patient's death unless his negligence or incompetence passed beyond a mere matter of compensation and showed such disregard for life and safety as to amount to a crime against the State................"
108. Relying on the said decision of the Privy Council in AKERELE's case, a Division Bench of this Court in Dr. A.K. Mitra and Ors. v. Manak Chand Rampuria, reported in 1988 Calcutta Criminal Law Reporter (Cal) 91, held that even though the patient ultimately had undergone an operation for removal of his tooth, there is no culpable negligence on the part of the doctors or of the anesthetist. It was also held that in the absence of autopsy examination there was no scope to contradict the opinion of the operating surgeon that the patient died due to cardiac arrest following tracheal aspiration after operation.
109. In Rakesh Ranjan Gupta v. State of U.P., , the Supreme Court also refused to infer a criminal negligence as against doctors in view of the autopsy report.
110. In Bolam v. Frien Hospital Management Committee, reported in 1957 (2) All ER 118, a very important principle of law relating to professional negligence was formulated in course of a charge to the jury. It was held:
"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 act............"
111. The principle in Bolam's case was adopted by the Hon'ble Supreme Court of India in several decisions including State of Haryana and Ors. v. Santra, .
112. Lord Denning M.R. in White House v. Jordan and Anr., reported in 1980(1) All ER 650, observed:
"that on error of clinical judgment by a medical practitioner did not itself amount to negligence in a legal sense ................... if allowance was not given for errors of judgment, there would be a danger, in all cases of professional men, of their being made liable whenever something happens to go wrong. Whenever I give a judgment and it is afterwards reversed by the House of Lords, is it to be said that I was negligent ? That I have not paid enough attention to a previous binding authority or the like ? Everyone of us everyday gives a judgment which is afterwards found to be wrong. It may be an error of judgment but it is not negligence. So also with the barrister who advises that there is a good cause of action and it afterwards fails. Is it to be said on that account that he was negligent? Likewise with medical men. If they are to be found liable whenever they do not effect a cure, or whenever anything untoward happens, it would do a great disservice to the profession itself. Not only to the profession but to society at large."
Be Be it mentioned here that the said decision was affirmed by the House of Lords in White House v. Jordan, reported in 1981(1) All ER 267.
113. Referring to Hotson v. East Berkshire Area Health Authority, reported in 1987(2) All ER 909, it was argued that for ascertaining the negligence, it is necessary to go deep into the nature of the case.
114. Reference was also made to a Single Bench judgment of Madhya Pradesh High Court to show that a mistaken diagnosis is not necessarily a negligent diagnosis.
115. Reference was also made to a decision of the Apex Court , Md. Aynuddin v. State of A.P., for analysing the culpable rashness and criminal negligence. In this judgment, the Apex Court viewed that culpable rashness lies in running the risk of doing an act with recklessness. Criminal negligence is the failure to exercise duty with reasonable and proper care and precaution, guarding against injury. Though it is a case of motor accident but the principle enunciated by their Lordships to analyse the words "rash act" or "criminal negligence" is very much important for the purpose of this case.
116. Reference was also made to a decision of the Apex Court in Tukaram Annaba Chavan and Anr. v. Machindra Patil and Anr., , in support of the contention that when it is proved that the certificate issued by Prof. B.N. Halder on 16.5.1998 was forged by the complainant and it is also indicated that Dr. Kunal Saha himself wrote something on the records of AMRI that the prescription was outcome of a joint consultation of Prof. Halder and Prof. Roychowdhury the present criminal case should not proceed without finding out the guilt of the concerned persons and the proceeding of this criminal case should have been suspended.
117. Reference was also made to the said decision and also another decision of the Apex Court in , Commissioner of Income Tax, Mumbai v. Bhupen Champak Lal Dalai and Anr., in support of the contention that this criminal case should not have been proceeded with before the decision of the medical experts in the complaint filed by Dr. Kunal Saha against them.
118. After a careful scrutiny of the decisions referred to above and also the law enunciated it is to be stated that when evidence is adduced in this case, this Court is competent to take appropriate decision. The main argument is that if Depo-Medrol was not injected by Prof. Sukumar Mukherjee, there was no chance of death of Anuradha. It is already analysed that there was no specific treatment protocol for the treatment of TEN. The ailment of Anuradha was also not considered as TEN when Depo-Medrol was administered. Finally the use of Depo-Medrol by an expert physician like Prof. Mukherjee on 7.5.1998 at the initial stage of an allergic disease cannot be construed as rash or negligent act. On 11.5.1998, Dr. Mukherjee did not take charge of the treatment as he was going away for three weeks in connection with a pre-scheduled meeting at USA. So he gave certain advice which was for consideration of the treating doctor to accept or not. But by any stretch of imagination it cannot be said that the said prescription proves the rash or negligent act on the part of Prof. Mukherjee. Similarly Prof. Halder also wrote a prescription. But it is also discussed hereinabove that it was not scrupulously followed indicating that no attempt was made to ascertain whether the treatment schedule was proper or not. No attempt was also made to place reliance on the treatment schedule fixed by the two doctors. So it cannot be said that both the doctors were rash or negligent in prescribing the medicines.
Moreover, there is no proof that all the treatment protocol suggested by these two doctors were followed and that their treatment was the only factor for causing the death of Anuradha. There was also no evidence to show that Prof. Roychowdhury had any role to play in the treatment of Anuradha and as such, even if he gave any advice it cannot be construed as direct cause of death of Anuradha. So after a careful scrutiny of the materials on record, the only irresistible conclusion is possible that the prosecution has not been able to prove the charge levelled against all the three accused doctors.
119. It would not be out of place to mention that Dr. Kunal Saha took upon himself a great risk of proving such an unprecedented case without referring the matter to an appropriate authority for investigation. The evidence adduced by the prosecution indicates that they wanted that burden of disproving the case was to be taken by the accused doctors. At several places, Dr. Kunal Saha opined that it was within the knowledge of the treating doctors. But it is sufficiently clarified that who was the treating doctor is not disclosed nor it is clarified as to whose treatment was followed. On the other hand, the regular interference with the treatment without following a fixed norm, practically changed the condition of the patient from bad to worse. Finally the shifting of the patient from Calcutta to Bombay was a great risk and in fact, infection was possible at that stage as has been sufficiently discussed hereinabove and also indicated by PW 10 and the records of Breach Candy Hospital. So the cause of death of Anuradha is to be ascribed on rash and negligent acts of the patient party and not of any of the accused doctors. If the death was caused after a continuous treatment at the hand of any of these doctors it would nave been a case for proving as to whether there was any rash or negligent act. 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.
120. It is already discussed that Dr. Kunal Saha was a medical student under at least two of the accused doctors. By the complaint he wanted punishment of such teachers alleging that due to their rash and negligent act, his wife Anuradha met the untimely death. In several pages of the complaint before the learned Chief Judicial Magistrate as well as before the Hon'ble National Consumer Disputes Redressal Commission at New Delhi, caustic remarks were made on the capability of these teachers as a doctor. Few of such remarks are absolutely defamatory in nature. The learned counsel appearing on behalf of the appellant doctors tried to argue that appropriate cost is to be awarded against the complainant for making a false case against the three renowned Professors. It is also argued that for using the forged document in a Court of law, meaning the certificate of Dr. B. Halder tampered with the words "for better treatment" and the Annexure 'C' to the complaint, appropriate action is required to be taken against the complainant as well as against Dr. Kunal Saha. It is already dismissed above that these two documents were tampered by adding certain endorsements to suit the purpose of the complaint case. But this Court has already taken the view that such an attempt to get benefit from these documents was frustrated. So without making any further comment on the point of interpolations of these documents or forgery, I leave it to the discretion of the appellant doctors for taking appropriate steps in this regard, if found necessary. As regards the prayer for awarding costs, I also do not like to impose any cost against the complainant since the complaint party was suffering from certain misconception.
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 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 ..............".
It appears that what Lord Denning discussed in the year 1979 as regards the increase of medical malpractice cases in USA practically brought into the soil of India by a citizen of USA. But at the time of filing the complaint, it was not taken into consideration that the treatment of Anuradha was not entrusted in the hands of any of the three accused doctors. For the purpose of establishing rash and/or negligent act on the part of the doctor, it is required to be proved that the patient was kept under the direct control and observation of a particular doctor or a group of doctors. It is already discussed above that in the present case only the advice of the three accused doctors at best were taken without any intention to translate those advices into action. So when there is no evidence that Anuradha was under the care or direct treatment of any of the three accused doctors, it cannot be said that they were rash or negligent in treating the patient. It is also discussed that if Anuradha died during her stay at Calcutta on getting direct treatment from any of the three accused doctors, the allegation of rash and negligent act on the part of the appellant doctors could have been considered.
122. It is interesting to note that while the three accused doctors were being examined under Section 251 of the Code of Criminal Procedure after stating the particulars of the offence, it was indicated that Dr. Sukumar Mukherjee between 7.5.1998 and 12.5.1998 at AMRI Calcutta caused the death of Anuradha by doing a rash and negligent act meaning the administration of steroids. Similarly, Dr. B. Halder and Dr. Abani Roychowdhury were clarified that between 12.5.1998 and 17.5.1998 at AMRI, Calcutta they caused the death of Anuradha by doing a rash and negligent act thereby meaning application of steroid drugs. This substance of accusation did not disclose the real state of affairs inasmuch as Anuradha died on 28.5.1998 at Breach Candy Hospital. So the examination of the accused persons under Section 251 of the Code were also not properly done. Of course at that early stage of the trial, it was also not possible on the part of the learned Magistrate to explain the substance of accusation properly. In fact, in the written complaint as corroborated by the initial examination of the witnesses under Section 200 of the Cr.PC, it was simply clarified that due to irregular treatment of Anuradha with unregulated dose of steroid caused her death. But the discussions hereinabove made are sufficient to indicate that the treatment as advised by Dr. Sukumar Mukherjee and Dr. B. Halder was befitting at that particular stage of the patient. But the complainant got those advices interrupted through the advice of some other doctors. So as soon as there was intervention of a third party in a treatment schedule advised by a doctor, the liability of the advising doctor ceases. It appears that the Trial Court did not consider all these aspects in their proper perspective and misdirected itself in finding the guilt of Professor Sukumar Mukherjee and Professor B. Halder. Of course the Trial Court rightly came to a conclusion as regards Prof. Abani Roychowdhury.
123. In this connection, it is also to be noted that Dr. Kunal Saha filed an application being CRAN No. 1294 of 2003 praying for restricting the newspapers in publishing the Court procedure by distorted fanciful and imaginative versions. But as Dr. Kunal Saha was not a party in these appeals, that application was not pressed. However, the complainant, Malay Kumar Ganguly filed a similar prayer in CRAN No. 1438 of 2003. Affidavit-in-opposition was filed on behalf of the appellant doctors pointing out that at the trial stage Dr. Kunal Saha with the aid of media published the alleged malpractice of the three doctors. The learned counsel appearing on behalf of these appellant doctors also argued that pressure tactics on the trial of the case was applied through the media for which the learned Magistrate without issuing summons to the accused doctors opted to issue warrant of arrest without giving the reasons required under the law. It was also argued that though Dr. Kunal Saha had sufficient time to publish his views in different media on several occasions, he moved an application before the Apex Court for closing his cross-examination in the trial within a stipulated time-limit alleging non-availability of sufficient time. It was argued that due to such time limit as fixed by the Apex Court, Dr. Kunal Saha could not be fully cross-examined by the defence. It was tried to be argued that all such pressure on the Court procedure was created due to the news published in different media at the insistence of Dr. Kunal Saha. But thanks to the authorities of the different newspapers that in course of hearing of these appeals they restrained themselves in publishing the arguments made by the learned counsel and practically they honoured the desire of the Court to wait till the final verdict is given by the Appellate Court. So those applications lost their force for which those are liable to be disposed of.
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.
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. So the time has come for the authority concerned to take appropriate steps, if necessary, by formulating appropriate regulation for the conduct of the doctors as well as the patient party. Unless a well-defined health scheme for all the citizens of this country is introduced from the national level, the distrust and disrespect between the patient party and the doctor cannot be removed. It is equally important to see that the patient party gets appropriate help in case of need. In an over-populated and developing country like India, all the benefits of a developed country cannot be expected. But it is desirable that leaving aside all obstacles and obstructions, appropriate steps would be taken in near future in upholding the right to get speedy treatment for all the citizens. It is also necessary to control the private practice of different doctors and specialists at different institutions and chambers so that the patient party is not required to wait for the treating doctor for indefinite period for the availability of such doctors. It is equally important to see that the cost of private treatment is financially viable and the expected cost of treatment is made known to the patient party at least before taking charge of the patient for treatment. It is also necessary to formulate a principle as to how many patients a doctor should handle on each day. The time is also ripe enough for the doctors as a community to take care of all these circumstances and to formulate an well-defined guideline only to restore the erstwhile position of the doctors as 'Demi Gods'.
Finally it is also necessary to consider whether a criminal case is to be started against the erring doctor immediately on getting the allegation of malpractice or maltreatment. If the doctors are forced to treat a patient on pain of being criminally prosecuted, it would not be possible to expect fair treatment. Death is the ultimate result of all serious ailments and the doctors are there to save the victim 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. So the patient party is required to depend on the judgment of the treating doctor. But at the same time it is for the treating doctor to ascertain whether he can treat the patient in a particular ailment. If it is detected by him that he has no such expertise or knowledge, he should readily disclose the same to the patient party with the advice of consulting appropriate specialist as was done in earlier days. This action can only save the doctors and the patients from mutual disrespect and distrust. Practically there is no appellate forum against the judgment of a treating doctor. But at the same time, the doctors for their own benefit and fame, do not think of maltreatment of a patient. This is undoubtedly a rule of practice and the exceptions are questioned. If any question of maltreatment, wrong judgment or malpractice against any doctor is raised, it is expected that an expert body should consider these aspects and if prima facie case is found by such an expert body, signal should be given for investigation into the case. For the purpose of proper inquiry the expert body is also required to be appropriately equipped so that materials can be collected to ascertain actually what treatment protocol was prescribed and whether those prescriptions were translated into action. Unless all such important pros and cons are taken into consideration, it would not be proper to leave the treating doctors at the mercy of the patient party or the police authority. Attempt should also be made to formulate appropriate procedure eliminating the chance of arrest of a doctor at the initial stage on the plea of maltreatment or wrong judgment. Practically the present case forced this Court to take into consideration all these aspects with the expectation that appropriate steps are to be taken by the authorities concerned.
125. So after a due consideration of the evidence on record and the discussions hereinabove made, I hold and conclude that the prosecution hopelessly failed to prove the case against any of the three accused doctors for which they are to be found not guilty to the charge under Section 304A of the Indian Penal Code. Accordingly, the two appeals being CRA No. 83 of 2003 and CRA No. 84 of 2003 filed by both the doctors are to be allowed and their conviction and sentence are to be set aside. Consequently the revisional application being CRR No. 1856 of 2002 and the Criminal Appeal No. 295 of 2002 are liable to be dismissed. Hence it is ORDERED that both the appeals being CRA No. 83 of 2003 and CRA No. 84 of 2003 be allowed. The judgment of conviction and sentence against Prof. Sukumar Mukherjee and Prof. Baidyanath Halder are set aside. Both these Professors are found not guilty to the offence punishable under Section 304A of the Indian Penal Code and both of them are honourably acquitted. They are also discharged from their respective bail bonds. The Criminal Appeal No. 295 of 2002 and Criminal Revision No. 1856 of 2002 are accordingly dismissed. The order of acquittal passed by the Trial Court against Prof. Abani Roychowdhury is hereby affirmed. The CRAN No. 1444 of 2003, CRAN No. 1443 of 2003, CRAN No. 1294 of 2003, CRAN No. 1322 of 2003, CRAN No. 1437 of 2003 and CRAN No. 1438 of 2003 are accordingly disposed of. Let urgent xerox certified copies of this judgment be supplied to the parties as prayed for on usual terms. This judgment do govern the fate of all the three appeals and the revisional application indicated hereinabove. Separate copies of this judgment be kept with the record of those cases.
Gorachand De, J.