We must bear in mind that negligence is attributed when existing facilities are not availed of. Medical negligence cannot be attributed for not rendering a facility which was not available. In our opinion, if hospitals knowingly fail to provide some amenities that are fundamental for the patients, it would certainly amount to medical malpractice. As it has been held in Smt. Savita Garg (supra), that a hospital not having basic facilities like oxygen cylinders would not be excusable. Therein this Court has opined that even the so-called humanitarian approach of the hospital authorities in no way can be considered to be a factor in denying the compensation for mental agony suffered by the parents. The aforementioned principle applies to this case also in so far as it answers the contentions raised before us that the three senior doctors did not charge any professional fees.
“Medical negligence
cannot be attributed for not rendering a facility which was not available.” The
Bench however said that “if hospitals knowingly fail to provide some amenities
that are fundamental for the patients, it would certainly amount to medical
malpractice”.
Supreme Court of India
Malay Kumar Ganguly vs Sukumar Mukherjee & Ors on 7 August, 2009
The patient (Anuradha) and her husband Dr. Kunal Saha (for short, "Kunal") were settled in the United States of America. Anuradha, a child Psychologist by profession, was a recent graduate from a prestigious Ivy League School (`Columbia University' in the New York State). Although a doctor by profession, Kunal has been engaged in research on H.I.V/ AIDS for the past 15 years.
They left U.S.A. for a vacation to India on 24th March, 1998. They arrived in Calcutta on 1st April, 1998. While in Calcutta, Anuradha developed fever along with skin rash on 25th April, 1998. On 26th April, Dr. Sukumar Mukherjee, Respondent No. 1 herein attended and examined Anuradha at her parental residence on a professional call. Dr. Mukherjee assured the patient and her husband of a quick recovery and advised her to take rest but did not prescribe her any specific medicine. However, two weeks thereafter, i.e., on 7th May, 1998, the skin rash reappeared more aggressively. Dr. Mukherjee was again contacted and as per his instructions, Anuradha was taken to his chamber. After examining Anuradha, Dr. Mukherjee prescribed Depomedrol injection 80 mg twice daily for the next three days. Despite administration of the said injection twice daily, Anuradha's condition deteriorated rapidly from bad to worse over the next few days. Accordingly, she was admitted at the Advanced Medicare Research Institute (AMRI) in the morning of 11th May, 1998 under Dr. Mukherjee's supervision. Anuradha was also examined by Dr. BaidyanathHalder, Respondent No. 2 herein. Dr. Halder found that she had been suffering from Erithima plus blisters. Her condition, however, continued to deteriorate further. Dr. Abani Roy Chowdhury, Consultant, Respondent No. 3 was also consulted on 12th May, 1998.
On or about 17th May, 1998, Anuradha was shifted to Breach Candy Hospital, Mumbai as her condition further deteriorated severely. She breathed her last on 28th May, 1998.
Kunal sent a lawyer's notice to 26 persons on 30th September, 1998. The first 19 addressees were those who had treated Anuradha at Kolkata while addressee numbers 20 to 26 were those who treated her in Mumbai.
On or about 19th November, 1998 one of his relatives, Malay Kumar Ganguly filed a Criminal Complaint in the Court of Chief Judicial Magistrate, 24 Paraganas at Alipore against Dr. Sukumar Mukherjee, Dr. Baidyanath Halder and Dr. Abani Roy Chowdhury, respondent Nos. 1, 2 and 3 for commission of offence under Section 304-A of the Indian Penal Code.
Thereafter Kunal filed O.P. Nos. 240 of 1999 against 19 persons who had rendered medical advice/treatment/facilities to Anuradha between 23rd April, 1998 and 17th May, 1998 at Kolkata before the National Consumer Disputes Redressal Commission, New Delhi (Commission). However, pursuant to the orders of the Commission names of some of the respondents were struck off.
In the said petition the complainant claimed an amount of compensation of Rs. 77,76,73,500/- with interest for the alleged deficiency in the service rendered by Respondent Nos. 1, 2, 3, 5, 6 and AMRI hospital (Respondent No.4).
On or about 17.7.1999, a complaint was filed by Kunal against Dr. Sukumar Mukherjee, Dr. Baidyanath Halder and Dr. Abani Roy Chowdhury before the West Bengal Medical Council (WBMC) making allegations similar to the one he had made in his complaint before the Commission.
On or about 29th May, 2000 , OP No. 179 of 2000 was filed by Kunal against the doctors, including Dr. Udwadia of the Breach Candy Hospital at Mumbai and the hospital itself before the Commission.
Before the learned Chief Judicial Magistrate, in the said criminal complaint a large number of witnesses were examined. A large number of documents were also marked as exhibits. The learned Chief Judicial Magistrate, Alipore by his judgment and order dated 29th May, 2002 found Respondent Nos. 1 and 2 guilty of commission of an offence under Section 304-A of the Indian Penal Code and sentenced them to undergo simple imprisonment for three months and to pay a fine of Rs.3,000/- each and in default to undergo a further simple imprisonment for 15 days. Respondent No.3, Dr. Abani Roy Chowdhury was, however, acquitted.
The West Bengal Medical Council dismissed the complaint filed by Dr. Kunal by its order dated 1st July, 2002.
On 25th May, 2003 the complainant-Kunal withdrew O.P. No.179/2009 filed before the Commission against the doctors/Breach Candy Hospital.
Against the order of the learned Magistrate, Respondent No.1 filed Criminal Appeal which was marked as Criminal Appeal No.55 of 2002 and Respondent No.2 filed Criminal Appeal No. 54 of 2002 before the learned Sessions Judge at Alipore, whereas the complainant, Mr. Malay Kumar Ganguly, filed a revision application being C.R.R. No. 1856 of 2002 for enhancement of the punishment imposed on Respondent Nos. 1 and 2. The complainant also filed another revision application before the High Court questioning the legality of the judgment with respect to acquittal of Respondent No.3. The Calcutta High Court withdrew the appeals preferred by Respondent Nos. 1 and 2 before the learned Sessions Judge to itself and heard the criminal appeals and revision petitions together.
By a judgment and order dated 19th March, 2004 the appeals preferred by Respondent Nos. 1 and 2 were allowed while the Criminal Revision Petitions filed by the complainant were dismissed. The said order has been challenged before us by way of Criminal Appeal Nos. 1191-1194 of 2005.
The Commission also by its judgment and order dated 1st June, 2006 dismissed O.P. No. 240 of 1999. Civil Appeal No.1727 of 2007 arises out of the said order.
A.2. SUBMISSIONS OF APPELLANT:
Dr. Kunal Saha, who appeared in person, made the following submissions :-
(i) Respondent No.1 from the very beginning should have referred Anuradha to a Dermatologist as she had skin rashes all over her body.
(ii) Diagnosis of Respondent No.1 that Anuradha was suffering from angioneurotic oedema with allergic vasculitis was wrong.
In any event, prescribing a long acting corticosteroid `Depomedrol' injection at a dose of 80 mg. twice daily for the next three days when it was the beginning of angeioneurotic oedema and the continued treatment on the same line later at AMRI by Respondent No.1 and other doctors led to her death inasmuch as -
(a) The Medical Journals as also the experts' opinion show that although steroid is not to be used when the patient is diagnosed to be suffering from Toxic Epidermal Necrolysis (TEN), and although some doctors still administer steroids, the administering of Depomedrol of 80 mg. twice daily, could not be prescribed under any clinical condition.
(b) For the said purpose the evidence of Dr. Anil Shinde (PW-8), Manager of Medical Service for Pharmacia; Dr. S. Bhattacharyya (PW-11), a highly respected Professor of Pharmacology at the Banaras Hindu University and opinions of Prof. Jo-David Fine ; Professor Gerald Pierard and Prof. Fritsch Peter (Exts. 4, 5 and 6) opining that steroids and in any event Depomedrol could not be prescribed; far less, in the quantity in which it had been done.
(iii) The pro-steroid experts also only use "quick acting" steroids for a short period and that too at very early stages of the disease and then quickly stop the same to avoid its side effects to enhance the infection or taper it gradually.
(iv) Respondents failed to adhere to the treatment protocol as outlined in the Table of the Textbook "Cutaneous Medicine and Surgery" authored by Prof. J.E. Revuz and J.C. Rojeau recommending - 5 "Primary Emergency Care" and "Symphtomatic Therapy" including specific direction for "fluid replacement', "antibacterial policy", "nutritional support' etc. The aforementioned should have been advised for treatment of Anuradha at AMRI.
(v) The treatment given to Anuradha at AMRI hospital continued as Respondent Nos. 2 and 3 jointly took charge and recommended steroids, despite stopping "'Depomedrol' after 12th May, 1998 without realizing that she had already been a huge amount of a "long-acting" steroid (Depomedrol) and in that view of the matter they should have administered adopted remedial measures which was not done.
(vi) Respondents Nos.2 and 3 added more fuel to the fire in the form of a new "quick-acting" steroid, "Prednisolone" at 40 mg. three times daily, which was itself an excessive dose. Dr. Udwadia of Breach Candy Hospital noticed the same when Anuradha was examined by him; as according to him not more than 40 mg. Prednisolone daily for one day, to be reduced to 5 mg. within the next 5 to 6 days is the ideal dosage.
(vii) When a patient is diagnosed to be suffering from TEN, supportive therapy is imperative in character but no such advice was rendered.
(viii) On and after 12th May, 1998, Anuradha was not provided any supportive treatment which could be evident from the hospital records seized by the police.
(ix) Although the police seized 71 pages of the record from AMRI, merely 22 pages are in relation to her stay during 11th May to 17th May, 1998, whereas the medical record of Breach Candy Hospital from 17th May to 27th May, 1998 cover around 370 pages.
(x) At AMRI records of vital parameters like temperature, pulse, blood pressure; etc. were not maintained which itself is an act of gross negligence.
(xi) Respondent Nos. 5 and 6, although were junior doctors, also followed the treatment guidelines set forth by the three seniors doctors, even though they were independent physicians with postgraduate medical qualifications and, thus, it was expected of them that they would take their independent decisions.
(xii) The Expert doctors has categorically stated that mal-practice had been committed during the treatment of Anuradha.
(xiii) The High Court committed a serious error in opining that there was no medical negligence on the part of Respondents.
(xiv) The allegation that the appellant had resorted to forgery was arrived at by the High Court without any application of mind as Dr. Anil Kumar Gupta testified that it was Respondent No.5 who had inserted the words "for better treatment" in his presence, which was also supported by Mr. T.R. Nehra, handwriting expert.
(xv) The transfer certificate when issued, in any event, must be held to be `for better treatment" as otherwise transfer of a patient from one hospital to the other, in the situation of the present case, was not necessary.
(xvi) The claim that the appellant had interfered in the treatment and had been responsible for his wife's death is absolutely incorrect inasmuch as his name did not even appear in any of the hospital records suggestive of any interference whatsoever. (xvii) The alleged defence of alibi resorted to by Respondent No.3 and accepted by the High Court is not borne out from the record which clearly shows that he was closely involved in the treatment of Anuradha at AMRI.
(xviii) The telephone bills brought on record clearly show that numerous calls were made by Dr. Kunal Saha to Respondent No.3's residence as well as to his office, during Anuradha's stay at AMRI which clearly established that Respondent No.3 was involved with Anuradha's treatment.
(xix) The High Court has failed to consider the previous decisions of this Court on criminal negligence, as in the instant case gross negligence on the part of the Respondents establishes the offence committed by them under Section 304-A of the Indian Penal Code.
(xx) Negligence in fact in Anuradha's treatment had been admitted by the Respondents at different stages of the proceedings. A.3. SUBMISSIONS OF RESPONDENTS Mr. Kailash Vasdev, learned senior counsel appearing for Respondent Nos. 1 and 2 would submit :-
(i) Kunal misled the doctors from time to time on the drugs/treatment to be administered to Anuradha.(ii) The Pathological Reports which were carried out on the basis of the prescription of Respondent No.1 had never been shown to him.(iii) A panel of elected Committee of the West Bengal Medical Council being an Expert Body having come to a specific finding vis-`-vis the Respondents that there had been no deficiency or negligence on the part of the doctors and use of the drugs is demonstrative of the fact that Respondents had not committed an offence under Section 304-A of the Indian Penal Code.
Mr. Ranjan Mukherjee, learned counsel appearing on behalf of Respondent No.3 contended :-
(i) It stands admitted by the appellant during his cross-examination that Respondent No.3 came to AMRI on 12th May, 1998 hours after Dr. B.N. Halder came there.(ii) There is no evidence that Dr. B.N. Halder and Respondent No.3 were together at AMRI or that those they discussed about the treatment to be given to the patient.(iii) Dr. B.N. Halder in his examination under Section 313 of the Code of Criminal Procedure has admitted that the prescription was written by him and, therefore, Respondent No.3 cannot be said to have any liability.(iv) The plea of the appellant that a joint prescription was made by Respondent Nos. 2 and 3 having been found to be in the handwriting of Kunal himself must be held to be a self-serving document.(v) Apart from making the joint prescription, Respondent No.3 having not been involved in the treatment of the deceased, the prosecution has miserably failed to prove its case.(vi) So far as the certificate of transfer of the patient is concerned, the same admittedly being interpolated, no credence thereto can be attached.(vii) As no witness has testified in support of the allegation that he was the principal physician of Anuradha during her stay at AMRI, the courts below must have correctly held.(viii) Respondent No.3 having been acquitted by both the courts, this Court should not exercise its jurisdiction under Article 136 of the Constitution of India as the view taken by the courts below is a plausible one.
B. PROCEEDINGS B.1. TRIAL COURT PROCEEDINGS The common defence of all the Respondents in the case is denial of material allegations brought against them as also false implication. Separate defences, however, have been entered into by each of the Respondents. We would notice them in seriatum:
(i) Dr. Sukumar Mukherjee examined Anuradha Saha (deceased) only on 7th May, 1998 and 11th May, 1998. He left India on 11th May, 1998 which was within the knowledge of her husband. He treated Anuradha as per medical protocol. He diagnosed her disease as allergic/hypersensitivity vasculitis. Depomedrol was correctly prescribed, being required for the disease Anuradha had been suffering from. The dose prescribed was also correct. He prescribed certain tests to be taken on 7th May as also on 11th May but he was not apprised of the results of those tests. On 11th May, he had also prescribed the requisite supportive treatment which was necessary for the recovery of Anuradha.
(ii) Dr. Baidyanath Halder examined the patient for one day only on 12th May, 1998. He diagnosed the disease as Toxic Epidermal Necrolysis (TEN) correctly and prescribed medicines as per the treatment protocol noted in the text books. He examined the patient having been requested by a group of his students who were friends of Anuradha's husband. He did not charge any fees. He prescribed all necessary supportive therapy required for the patient of TEN. He had not been given any feedback by the husband of the deceased after 12th May, 1998.
(iii) Dr. Abani Roychowdhury had never seen the patient nor treated her at AMRI at any point of time. He being attached to AMRI visited the hospital once in a week at the outdoor. On 12th May, 1998 having been requested by Dr. Kunal Saha as also Dr. Prasad, he went to the cabin only for the purpose of boosting the patient's morale. He neither treated her nor was he a member of the team of doctors treating Anuradha at AMRI. As despite requests he had not participated in the treatment of the deceased, Kunal implicated him falsely.
(iv) Respondent No. 4 contended that the Appellant was fully aware of the absence of a burn ward in AMRI at the time of admission of the deceased patient. Furthermore, the deceased was shifted to a VIP cabin in the hospital which was fully isolated, with environmental temperature control. Moreover it was Kunal, himself who had prevented the nursing staff from taking the temperature, blood pressure etc. Also the infection, as alleged, aggravated due to transportation of the deceased from Kolkata to Mumbai. Moreover non administration of IV fluids is a matter of judgment for the treating doctor and is not open to the Hospital Management to interfere with.
(v) Respondents 5, Dr. Balaram Prasad contended that the medical treatment sheet of AMRI dated 11.5.1998, would show that he not only attended the patient for the first time but he also meticulously noted the diagnosis and continued the same medicine for one day as was prescribed by Dr. Mukherjee. Before, however, medicines as per his prescription could be administered, Respondent Nos.1 and Respondent 2 took over the treatment.
(vi) Respondent 6, denied the allegation of the appellant that he did not give effect to the medical protocol while dressing Anuradha. According to him, reference was made to him by Respondent No.5 for the sole purpose of dressing the patient. He took care of the patient as far as wound care was concerned and did the dressing as per medical norms in support whereof reliance was placed on the opinion of Dr. Jean Claude Roujeau of France.
Respondents did not plead guilty, they were put to trial in the criminal matter.
Before the learned Chief Judicial Magistrate, South - 24 Parganas, Alipore, the prosecution examined 11 witnesses. The complainant Malay Kumar Ganguly examined himself as PW-1 whereas husband of the deceased Kunal examined himself as PW-2. Dr. Balaram Prasad who was a visiting consultant of AMRI at the relevant time was examined as PW-3. He is Respondent No 5 in the connected civil appeal. Dr. Aloke Majumdar attached to the B.R. Singh Railway Hospital, Sealdah as Senior DivisionalMedical officer (ENT) examined himself as PW-4. PW-5 is Dr. Anil Kumar Gupta who was attached to the Sub-divisional Hospital, Asansol as a Medical Officer. The President of the West Bengal Medical Council Dr. Ashoke Kumar Chowdhury was examined as PW-6. Prasenjit Bhattacharjee, a Sub-Inspector of Kolkata Police who was attached to the Lake Police Station at the relevant time was examined as PW-7. Dr. Anil Shinde, a medical practitioner and Manager of Pharmacia India Limited, Gurgaon, Haryana (the company manufacturing Depomedrol) was examined as PW-8. Dilip Kumar Ghosh who was the Registrar, West Bengal Medical Council has been examined as PW-9. Dr. Faruk E. Udwadia, a consultant physician with specialization in critical care and respiratory medicine of Breach Candy Hospital, Mumbai who treated the deceased from 12th May, 1998 to 18th May, 1998 was examined as PW-10. Dr. Salil Kumar Bhattacharjee, Professor of Pharmacology Institute of Medical Science, Benaras Hindu University was examined as an expert witness PW-11 on behalf of the prosecution.
The defence has also examined 3 witnesses. DW-1 Smt. Sutapa Chanda is the Nursing Superintendent of A.M.R.I. Dr. Kaushik Nandy, a Plastic Surgeon attached to AMRI, who is a Respondent in the connected Civil Appeal and had treated the deceased, was examined as DW-2. Mihir Pal, a Group `D' staff attached to Asansol Sub-Sivisional Hospital was examined as DW-3.
The prosecution proved as many as 20 documents, whereas the defence has proved 4 documents.
Before the learned Trial Judge as also before the Commission, the parties hereto had relied upon several medical text books of different authors, journals, research papers/ deliberations of the National Conference on Medical Science, transcripts of CDs, package insert, etc. One audio cassette has been produced on behalf of the complainant to prove the conversation which took place between him and the President of the West Bengal Medical Council Dr. Ashoke Kumar Chowdhury. JUDGMENT OF THE TRIAL COURT The Trial Court observed as under:
I. The cause of death of Anuradha was Septicemia shock with multi-
organ failure leading to cardio-respiratory arrest. II. The Breach Candy Hospital, Mumbai was not responsible for causing the death of Anuradha.
III. Re : Dr. Sukumar Mukherjee:
(i) He having been consulted by Dr. Kunal Saha since the 4th week of April, 1998, i.e., at his residence, at his chamber at Nightingale Diagnostic & Eye Care Rresearch Centre Private Limited and particularly on 3rd May, 1998, 4th May, 1998, 7th May, 1998 as also on 11th May, 1998 at AMRI and his line of treatment having been followed despite his leaving abroad on the night of 11th May, 1998, his defence that his prescription from the afternoon of 11th May, 1998 became automatically redundant and inoperative cannot be accepted from a doctor of his status. Such a stand taken by him was not only a motivated one but beyond the moral obligation of a doctor to his patients. The medicine was prescribed by him [ Corticosteriod, viz., Depomedrol (Methyleprednisolone Acetate) ] without even diagnosing a disease. But, he did not advise symptomatic therapy like bed rest, elevation of the legs and bandage to reduce Oedema nor prescribed any medicine for control of the underlying disease. It was held:
"...Small vessel vasculitis are of different kinds of which allergic vasculitis is one. It corresponds approximately to Hypersensitivity Angilis. The term allergic is little contentious since it implies a immunological etiology which may be an over simplification. Allergic vasculitis is the most common part of Leucocytoclastic vasculitis in adults. It is characterized by purpuric or necrotic skin lesions, with or without systemic features. Rheumatoid Arthritis is the most common association with coetaneous leucocytoclastic vasculitis..."(ii)At least on 11th May, 1998, Anuradha was correctly diagnosed by Dr. A.K. Ghoshal as also the following day by Dr. B.N. Halder, still application of Corticosteriod Prednisolone for all these days in prohibitive quantity and dosing intervals with no supportive therapy was continued. That made her lose all her immunity to fight out bacteria and become immunosuppressed leading to `Septicemia' or `Septic shock'.
(iii)PWs 5 and 11 also deposed about high dose of Depomedrol. Its adverse effects caused `Immunosuppression' and `Septicemia' which resulted in the death of Anuradha.
(iv)The working Manager of Pharmacia India Ltd., Dr. Anil Shinde (PW-8) has categorically stated that the maximum recommended dose of Depomedrol for any dermatological or other clinical condition is 40 mg to 120 mg once a week or once in two weeks as per the severity of the disease and clinical need. Depomedrol cannot be given 80 mg twice daily in any clinical condition and even in the right dose it is not recommended for TEN patients as it is a long acting steroid. Therefore, musking of infection, latent infections become active and opportunistic infections are likely as it has immunosuppressive action. The package insert of Depomedrol in U.S.A. indicates that Corticosteroids may musk some signs of infections and new infections may appear during their use.
(v) Another expert Dr. Salil Kumar Bhattacharya (PW-11) has gone further and stated that Depomedrol has a prolonged duration of action. The half life of the drug is 139 hours for which 80 mg twice daily is excessive which is dangerous for the patient and the immediate adverse effect of overuse of this steroid is immunosuppression and chance of opportunistic infection. Sepsis is a severe infective condition which is systemic in nature and is caused by rapid growth and multiplication of infective organism as opined by PW-11.
(vi)Dr. Anil Kumar Gupta (PW-5) made correspondences with Pharmacia Upjohn to receive the following reply:
"...our package insert on Depomedrol does not recommend the twice daily dose of injection Depomedrol 80 mg. in any clinical condition..."(vii) In his opinion, the use of Depomedrol in high doses can cause immunosuppression and H.P.A. Axis suppression as per package insert.
(viii) Dr. Balaram Prasad who admittedly treated Anuradha had doubt with regard to the treatment of the patient and sought immediate advice regarding continuation of the drug from Dr. Mukherjee and others. However, he was asked to continue with the medicine by Dr. Mukherjee which was started by Dr. Roychowdhury, the Dermatologist.
(ix) Dr. Mukherjee did not follow the treatment guidelines provided for in the Journals. The resolution taken in an International Conference known as Creteilis Experience, 1987 authored by J. Revus and J.C. Roujeau (Ref. Archives of Dermatology, Vol. 123, pages 1156-57) had also not been followed.
(x) Although steroids are used but the supposed advantage of the said therapy are far outweighed by its drawbacks. It is not used as a standard therapy in TEN.
(xi) Although use of Corticosteroid is advocated in the treatment of TEN, reports from early 1980s condemn their use.
(xii) The husband of the deceased is a Non-Resident Indian settled in America as a doctor. The complainant examined doctors from different corners of the country. On the other hand, the witnesses examined on behalf of the defence were one doctor, one Nursing Superintendent and one employee of the Department of Health, Govt. of West Bengal.
(xiii) It is not denied by Dr. Mukherjee in his examination under Section 313 of the Code of Criminal Procedure that immunosuppression, infection and sepsis are the serious adverse effects of Corticosteroids as also the probable effect of the overuse and excessive dose of the said steroids including Depomedrol.
(xiv) Even Dr. Kaushik Nandy (DW-2) admitted that immunosuppression can be a side-effect of overuse or excessive use of Corticosteriods and may cause a chance of infection in any patient. He admitted that steroids should not be used as a standard therapy for treatment of TEN.
(xv) In Fitz Patrick's Dermatology for General Medicine, the text book on which both sides placed reliance, it is stated that "Glucocorticosteroids (steroids) may promote the risk of infection (Pneumonia, Septicemia)".
(xvi) Steroid was used in the Breach Candy Hospital, as deposed by PW-10, to completely taper the dose as the patient had very high-circulating steroid level in her body because of her receiving 120 mg. of Prednisolone daily in Kolkata and it was done for her safety only. The point with regard to Haemodialysis was not put to Dr. Udwadia and, thus, no benefit in this behalf can be given to defence.
(vii)Dr. Kaushik Nandy (DW-2) has admitted that a very high circulating steroid level in a patient may appear if large doses of steroids are administered.
(viii)Non-examination of some witnesses like the brother of the deceased Amritava Roy and sisters of AMRI was not very material.
Dr. Sukumar Mukherjee was accordingly held guilty of the charge of negligence.
IV. Dr. Baidyanath Halder
(i) He although diagnosed correctly but prescribed steroids. Although, according to him, he had examined Anuradha only once and no feedback about her condition was given to him. If he was so sincere and careful, he could have collected the information about the condition of the patient with regard to the result of his treatment from the Hospital authorities or the patient party. He had issued a certificate on 16th May, 1998. His prescription of Prednisolone 40 mg. thrice daily and Minabol twice daily was followed by the nurses of AMRI, as stated by Sutapa Chanda (DW-1).
(ii)Dr. Halder was intimated about the prescription of Dr. Mukherjee and the fact that Anuradha had already received 800 mg. of Depomedrol which is equivalent to 1100 mg. of Prednisolone but despite the same he had advised Prednisolone three times a day without any supportive therapy which is mandatory for the patient of TEN as accepted by different universal protocols.
(iii)As Dr. Halder advised against pricking of needles in case of such patients, no supportive treatment could be administered.
(iv)In view of the certificate given by Dr. Halder, the court had reason to believe that he treated the patient from 12th May, 1998 at least upto 16th May, 1998.
(v) Non-tapering of doses of steroid is in violation of the treatment protocol for the disease TEN. The principles of supportive care have been violated totally in the prescription of Dr. Halder.
(vi)In his statement under Section 313 of the Code of Criminal Procedure, he had taken a specific plea that "journey from Kolkata to Bombay likely to enhance the danger", still, he had issued the certificate.
(vii)The purported interpolation of three words "for better treatment" did not make any difference, i.e., in the certificate itself to show that it was issued at the instance of the patient party.
(viii)The defence that the patient was removed at their own risk is not correct as Dr. Saha did not furnish any risk bond and only some other person not connected with the patient had endorsed the record for taking the patient at his own risk. In any event, such undertaking was not of much significance.
(ix)The accused doctor should not be allowed to raise the question of chance of infection in transit from Kolkata to Mumbai as Anuradha was suffering from TEN which is a non-infectious disorder and she was found fit to travel from Kolkata to Mumbai. In view of her physical condition which was found at Breach Candy Hospital, the certificate issued does not properly reflect the actual physical condition of the patient, which itself amount to avoidance of responsibility on the part of the treating Physician. V. Dr. Abani Roychowdhury
(i) There is nothing to show that Dr. Roychowdhury treated Anuradha except the entries which appeared in the prescription of Dr. Mukherjee dated 11th May, 1998, viz., "May I request Dr. Abani Roychowdhury to see her" and another endorsement dated 15th May, 1998 wherein PW-3 Dr. B. Prasad wrote to continue as advised by Dr. Mukherjee and Dr. Abani Roychowdhury. There is nothing to show that he issued any prescription.
(ii) The statement of DW-1 that Dr. Roychowdhury had been to AMRI is wholly unworthy of credence as she is a hearsay witness having heard the same from PW-2 who in his evidence did not state thereabout.
(iii)The statement made by DW-2 in his affidavit affirmed in the case before the Commission stating that "I carried out and suggested necessary treatment in conformity with the general treatment pattern prescribed by senior consultants, namely O.P. Nos. 2 and 3 who were generally heading the medical team looking after the treatment of the deceased. All the steps were taken to minimize chance of infection and discomfort to the patient/deceased" has not been proved as only a Xerox copy of the same had been produced.
(iv) The complainant has failed to establish the role of Dr. Roychowdhury in the treatment of Anuradha.
VI. The defence story that Dr. Saha had interfered in the matter of treatment, as deposed by DW-2 is not borne out from the treatment sheet and consultation record maintained and kept by the nurses at AMRI particularly in view of the statement of DW-1 that Anuradha's nurses had been maintaining all the records.
VII. There is nothing on record to show that any advice was given for biopsy. It was not necessary to conduct the post-mortem on the dead body of Anuradha as the cause of death, as expressed by Dr. Udwadia, was known. Immunosuppression having been found by Dr. Udwadia, permission for laboratory tests was not considered necessary. B.2. HIGH COURT JUDGMENT
(i) The High Court on the other hand in its judgment observed that in view of the nature of the offence under Section 304-A, coupled with the fact that the penalty imposed therefor was imprisonment for two years, the Chief Judicial Magistrate should have converted the summons case into a warrant one.
(ii) The C.J.M. should not have issued warrant of arrest without treating the case into a warrant case.
(iii) It should have been considered that three renowned professors of the State could have been man handled (by the police) on the basis of said arrest warrant.
(iv) The fact that accused doctors did not levy any professional fees was also a matter of relevance.
(v) In absence of the post-mortem examination with regard to the cause of death of Anuradha, it must be held that the death was a natural one. The death certificate issued by the Breach Candy Hospital, Mumbai was not a conclusive proof of the cause of death but was only a tentative one. It was silent about the antecedent cause or other significant conditions contributing to the death. The death certificate could not rule out the possibility of accidental, suicidal or homicidal cause of death. The doctor who issued the death certificate was not examined. Thus immediate cause of death vis-a-vis the link thereof with the treatment at Kolkata and that too specially at the hands of Respondents 1 to 3 was not proved.
(vi) Improvement to her health noticed in the Mumbai hospital after 25th May, 1998 ran contrary to the contention of complainant. Re : DR. MUKHERJEE The allegation that he was responsible for causing the death of Anuradha by his rash and negligent act not amounting to culpable homicide by advising, prescribing and treating the deceased with steroid drugs namely Depomedrol, 80 mg, IM stat twice daily and other drugs in improper dosage at improper interval without any supportive treatment was rejected for the following reasons :-
(i) Various tests advised by him were not undertaken and he was not apprised of the treatment chart of Anuradha for the period 3rd April, 1998 to 6th May, 1998.(ii) Anuradha admittedly was suffering from certain allergic disorders which were aggravated due to the intake of Chinese food and for treating such allergic disorders generally steroids would be used and thus the trial court was not correct to hold that Dr. Mukherjee should not have prescribed Depomedrol.(iii) There is nothing on record to show that the drug was actually administered to the patient because no feedback of the treatment was given to him.(iv) At the time of admission at AMRI, Dr. Mukherjee's prescription was not taken into consideration. In fact it was indicated that the patient was being treated by somebody else whose identity had not been disclosed.(v) Diagnosis that Anuradha was suffering from TEN was not done by Dr. Mukherjee. The package insert of Depomedrol did not indicate that it could not be prescribed for the said disease. As Anuradha is stated to be suffering from vasculitis and could be treated with the said medicine, which opinion has been supported by others including Dermatologist - Dr. A.K. Ghoshal, it could not be construed to be incorrect and contrary to medical practice and ethos.
(vi) Dr. Ghosal was not examined to explain the basis upon which the patient was diagnosed to be suffering from TEN.
(vii) Oral admission of Tab. Wysolone was sufficient to indicate that the treatment of the patient was being carried out as per the prescription of Dr. Mukherjee. However, in any event the evidence on record was sufficient to indicate that from 3rd April, 1998 till her admission at AMRI on 11th May, 1998, Anuradha was being treated after taking advice from different doctors. There was evidence on record to indicate that Kunal's doctor friends contributed in her treatment.
(viii) There is a possibility of Anuradha suffering from drug allergy as well as allergy from Chinese foods. Application of steroid is undoubtedly an accepted treatment protocol for allergic disorders. In fact, Depo-Medrol is a Glucocorticoid which has anti inflammatory and anti-allergic action.
(ix) Allergic vasculitis is an allergic and inflammatory condition of the blood vessels in the body and can affect not only the blood vessels of the skin but also any internal vital organs leading to death of the patient at any point of time. Allergic vasculitis is not a dermatological disease. The treatment suggested by Dr. Mukherjee, therefore, could not be considered to be an act of rash and negligence.
Re : DR. HALDER The allegation of the complainant that the prescription by Dr. Halder of Prednisolone 40 mg. thrice daily had aggravated the disease was held not tenable on the following grounds :-
(i) He visited the patient only on 12th May, 1998 which was supported by Dr. Balaram Prasad. He, therefore, had no role to play in the treatment of Anuradha which would be evident from the record of AMRI.(ii) There is nothing on record to show that the prescription of Prof. Halder was given effect to.
(iii) Occlusive dressings were carried as a result of which infection had been increased
(iv) He had suggested Benadryl Syrup as there were eruptions inside the mouth and Cortisone Kemicetin eye ointment for eye care. However, the steroid based Neomycin Antibiotic was prescribed by the Consultant Ophthalmologist Dr. S. Bhattacharya on 12th May, 1998, although Prof. Halder in his prescription advised to avoid Neomycin and Soframycin which are common causes of drug allergy. As such the treatment suggested by Prof. Halder was not followed.
(v) There was no evidence to show that he was incharge of the patient.
(vi) There was no evidence to indicate that Dr. Mukherjee ever requested Dr. Halder to see the patient.
(vii) Despite the fact that Dr. Halder confirmed that the patient was suffering from TEN, records indicated that his line of treatment was not followed and, thus, the evidence to consider the deceased to be suffering from TEN is of no value.
(viii) Anuradha was thus not suffering from TEN. Although the papers of Breach Candy Hospital mention that the disease was diagnosed as TEN, but the attending physician was not a dermatologist. Thus no one came forward to say that Anuradha was suffering from TEN.
(ix) The death certificate also did not indicate that Anuradha was suffering from TEN.
(x) Dr. Kunal Saha, husband of the deceased Anuradha being himself not a Dermatologist; his opinion is irrelevant, particularly when he is said to have become specialist of TEN subsequently upon studying the subject after her death.
(xi) Prescription of Prof. Halder indicted that he stopped Depo-
Medrol once he started Prednisolone 40 mg. thrice with other medicines. He also prohibited local anesthesia, Neomycin, Soframycin. He also gave importance on Elecrtolyte balance, nutrition and advised for prevention of secondary infection.(xii) Prof. Halder is a renowned Dermatologist with numerous publications and teaching experience. His line of treatment was in conformity with the accepted norms particularly in view of the fact that there is no universal protocol for the treatment of TEN. Treatment of each patient will depend upon his/her condition on a particular day.
(xiii) During Anuradha's stay at AMRI there was no indication of any complication like hypovolemia, internal organ failure, infection of septicemia etc. Re : PROF. ABANI ROY CHOWDHURY.
Allegation that he had also taken active part in the treatment of Anuradha is not established from the record.
There is nothing on record to show that Dr. Halder while writing the prescription had any prior discussion with Dr. Abani Roychowdhury. The endorsement that the prescription was a joint prescription of Dr. Halder and Dr. Roychowdhury was admittedly made by Dr. Kunal Saha himself Although some of the doctors of AMRI had stated that they had received the advice of Dr. Roychowdhury but the nature of the advice had not been clarified by them.
RE: CERTIFICATE The allegation that the certificate was issued at the instance of Dr. Roychowdhury is not correct as the certificate issued by Prof. Halder did not indicate that Anuradha was being carried by a Chartered flight for better treatment. The words "for better treatment" were not written by Prof. Halder and only in the course of evidence it was proved that there was an interpolation in the certificate. The same was also admitted by Dr. Balaram Prasad and thus the certificate of Prof. Halder was held to be forged. The forged certificate demolishes the prosecution story that at the advice of Prof. Halder or Prof. Roychowdhury the patient was taken to Mumbai. The endorsement of Dr. Kunal Saha on the record of AMRI really proved that Anuradha was shifted from the hospital at their own risk. The evidence on record also indicates that till the evening of 18th May, 1998, the dressing of Anuradha was not changed. Thus, by removing Anuradha, her husband Kunal Saha took upon himself great risk of infection to her in course of transit being aware that infection was very common at that critical stage for the patient.
Kolkata doctors had no hand in shifting Anuradha from Kolkata to Mumbai.
The High Court also opined that the patient party did neither follow the advice of Dr. Mukherjee nor that of Prof. Halder. GENERAL OBSERVATIONS BY THE HIGH COURT
(i) As Anuradha was treated at AMRI for six days and at Breach Candy Hospital for 12 days, by no stretch of imagination her death had anything to do with the treatment at AMRI ; the cause of death being absent.
(ii) The contention of Dr. Kunal Saha that his wife was almost dead when brought to Breach Candy Hospital, was untrue.
(iii) Anuradha was admitted under Dr. Balaram Prasad, who was a Consultant Physician having Post Graduate Degree. He also claimed to be the physician-in-charge of the treatment.
(iv) Interference by Dr. Kunal Saha was sufficient to indicate that treatment of Anuradha was monitored by him alone and nobody else. Although, he claimed that Anuradha was suffering from TEN which was a dermatological disease, but Anuradha was admitted by him under a Plastic Surgeon, Dr. S. Keshwani. Even at the initial stage Dr. Kunal Saha gave instructions to the doctors on 17th May, 1998 rejecting the treatment suggested by doctors attending at Breach Candy Hospital, Mumbai. Thus the diagnosis of the disease and the follow-up action was done under the direct supervision of Dr. Kunal Saha and his brother-in-law. Such was the position at AMRI also.
(v) The opinion of three internationally-accepted experts on TEN was not acceptable as none of them were examined in Court. From the records of Breach Candy Hospital it would itself appear that Anuradha was being administered medicines other than the ones prescribed by the doctors. Cash memos for purchase of medicines would show the discrepancy in the medicines prescribed by the doctors like Bactroban Ointment, Efcorlin (one kind of steroid) and Sofratule purchased on 12th, 13th and 16th May, 1998 had not been prescribed by the doctors. Relatives of the patient having not followed the treatment protocol of the doctors under whom the patent is admitted; as soon as any interference is made therewith, the doctors are absolved of their liability.
Charge of professional negligence on a medical person is a serious one as it affects his professional status and reputation and as such the burden of proof would be more onerous. A doctor cannot be held negligent only because something has gone wrong. He also cannot be held liable for mischance or misadventure or for an error of judgment in making a choice when two options are available. The mistake in diagnosis is not necessarily a negligent diagnosis.
Even under the law of tort a medical practitioner can only be held liable in respect of an erroneous diagnosis if his error is so palpably wrong as to prove by itself that it was negligently arrived at or it was the product of absence of reasonable skill and care on his part regard being held to the ordinary level of skill in the profession. For fastening criminal liability very high degree of such negligence is required to be proved.
Death is the ultimate result of all serious ailments and the doctors are there to save the victims from such ailments. Experience and expertise of a doctor are utilised for the recovery. But it is not expected that in case of all ailments the doctor can give guarantee of cure.
B.3. NATIONAL COMMISSION JUDGMENT The Commission in its judgment noted that doctor or a surgeon never undertakes that he would positively cure the patient nor does he undertake to use the highest degree of skill, but he only promises to use fair, reasonable and competent degree of skill. In this regard the commission opined that if there are several modes of treatment and a doctor adopts one of them and conducts the same with due care and caution, then no negligence can be attributed towards him It went on to note that there was no negligence on part of Dr. Mukherjee because even Dr. A. K. Ghoshal, Dermatologist, who diagnosed the disease of Mrs. Anuradha as TEN, prescribed the same treatment.
Further, it observed that no records were produced by Dr. Saha regarding the treatment given to Mrs. Anuradha from 1st April 1998 to 7th May 1998. As there is no specific treatment for TEN, error of judgment in the process of diagnosis does not amount to deficiency in service, considering that the disease TEN is a rare occurring in 1 case out of 1.3 per million per year.
It went on to observe that the patient was never in the absolute care of Dr. Haldar, who had treated her only on 12th of May 1998. Dr. Haldar, it noted, was, therefore, an unnecessary party.
It opined that all the necessary care was taken by Dr. Mukherjee and Dr. Haldar. It laid special emphasis on the fact that a complaint had been filed before the West Bengal Medical Council, which concluded that there was no deficiency on the part of the doctors. The Writ petition against the said decision before the High Court was dismissed. Therefore, it was concluded that there was no negligence on the part of the doctors. C. DETERMINATION OF CERTAIN SALIENT POINTS OF LAW AND FACTS C.1. EXPERT EVIDENCE Section 45 of the Indian Evidence Act speaks of expert evidence. It reads as under :-
"45. Opinions of experts - When the Court has to form an opinion upon a point of foreign law, or of science, or art, or as to identity of hand writing or finger-impressions, the opinions upon that point of persons specially skilled in such foreign law, science or art, or in questions as to identity of handwriting or finger impressions, are relevant facts. Such person called experts.Illustrations(a) The question is, whether the death of A was caused by poison. The opinions of experts as to the symptoms produced by the poison by which A is supposed to have died, are relevant.(b) The question is whether A, at the time of doing a certain act, was by reason of unsoundness of mind, in capable of knowing the nature of the act, or that he was doing what was either wrong or contrary to law.The opinions of experts upon the question whether the symptoms exhibited by A commonly show unsoundness of mind, and whether such unsoundness of mind usually renders persons incapable of knowing the nature of the acts which they do, or knowing that what they do is either wrong or contrary to law, are relevant.(c) The question is, whether a certain document was written by A. Another document is produced which is proved or admitted to have been written by A.The opinion of experts on the question whether the two documents were written by the same person or by different persons are relevant."A Court is not bound by the evidence of the experts which is to a large extent advisory in nature. The Court must derive its own conclusion upon considering the opinion of the experts which may be adduced by both sides, cautiously, and upon taking into consideration the authorities on the point on which he deposes.
Medical science is a difficult one. The court for the purpose of arriving at a decision on the basis of the opinions of experts must take into consideration the difference between an `expert witness' and an `ordinary witness'. The opinion must be based on a person having special skill or knowledge in medical science. It could be admitted or denied. Whether such an evidence could be admitted or how much weight should be given thereto, lies within the domain of the court. The evidence of an expert should, however, be interpreted like any other evidence.
This Court in State of H.P. v. Jai Lal and others, [ (1999) 7 SCC 280] held as under :-
" 17. Section 45 of the Evidence Act which makes opinion of experts admissible lays down that when the court has to form an opinion upon a point of foreign law, or of science, or art, or as to identity of handwriting or finger impressions, the opinions upon that point of persons specially skilled in such foreign law, science or art, or in questions as to identity of handwriting, or finger impressions are relevant facts. Therefore, in order to bring the evidence of a witness as that of an expert it has to be shown that he has made a special study of the subject or acquired a special experience therein or in other words that he is skilled and has adequate knowledge of the subject.18. An expert is not a witness of fact. His evidence is really of an advisory character. The duty of an expert witness is to furnish the Judge with the necessary scientific criteria for testing the accuracy of the conclusions so as to enable the Judge to form his independent judgment by the application of this criteria to the facts proved by the evidence of the case. The scientific opinion evidence, if intelligible, convincing and tested becomes a factor and often an important factor for consideration along with the other evidence of the case. The credibility of such a witness depends on the reasons stated in support of his conclusions and the data and material furnished which form the basis of his conclusions.19. The report submitted by an expert does not go in evidence automatically. He is to be examined as a witness in court and has to face cross- examination. This Court in the case of Hazi Mohammad Ekramul Haq v. State of W.B.concurred with the finding of the High Court in not placing any reliance upon the evidence of an expert witness on the ground that his evidence was merely an opinion unsupported by any reasons."ADMISSIBILITY OF EXHIBITS 4, 5 AND 6 Kunal, before us, contended that the High Court committed a serious error in not placing reliance upon medical opinions i.e. Exts. 4, 5 and 6 on the premise that no objection in that behalf was raised at any point of time.
Kunal would argue that this Court having given him permission to examine the expert witnesses on Video Conferencing and he having deposed in terms thereof, Respondents could have asked for their cross-examination at any point of time and not having done so, it does not lie in their mouth to contend that the opinions of the said experts who are themselves authors on TEN and having done research on the disease TEN, are not admissible. FOR THE PURPOSES OF CRIMINAL PROCEEDINGS Kunal, however, would contend that the aforementioned documents were exhibited without any demur whatsoever. The respondents, furthermore, did not make any prayer to cross-examine the said witnesses.
It is true that ordinarily if a party to an action does not object to a document being taken on record and the same is marked as an exhibit, he is estopped and precluded from questioning the admissibility thereof at a later stage. It is, however, trite that a document becomes inadmissible in evidence unless author thereof is examined; the contents thereof cannot be held to have been proved unless he is examined and subjected to cross- examination in a court of law.
The document which is otherwise inadmissible cannot be taken in evidence only because no objection to the admissibility thereof was taken. In a criminal case, subject of course, to the shifting of burden depending upon the statutes and/or the decisions of the superiors courts, the right of an accused is protected in terms of Article 21 of the Constitution of India. The procedure laid in that behalf, therefore, must be strictly complied with. Exhibits 4, 5 and 6, in our opinion, are not admissible in evidence in the criminal trial.
FOR PURPOSES OF PROCEEDINGS BEFORE THE NATIONAL COMMISSION The said exhibits, however, are admissible before the consumer court. This Court in R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P. Temple,(2003) 8 SCC 752, at page 763 :
"... Ordinarily, an objection to the admissibility of evidence should be taken when it is tendered and not subsequently. The objections as to admissibility of documents in evidence may be classified into two classes: (i) an objection that the document which is sought to be proved is itself inadmissible in evidence; and (ii) where the objection does not dispute the admissibility of the document in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient. In the first case, merely because a document has been marked as "an exhibit", an objection as to its admissibility is not excluded and is available to be raised even at a later stage or even in appeal or revision. In the latter case, the objection should be taken when the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. The latter proposition is a rule of fair play. The crucial test is whether an objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. The omission to object becomes fatal because by his failure the party entitled to object allows the party tendering the evidence to act on an assumption that the opposite party is not serious about the mode of proof. On the other hand, a prompt objection does not prejudice the party tendering the evidence, for two reasons: firstly, it enables the court to apply its mind and pronounce its decision on the question of admissibility then and there; and secondly, in the event of finding of the court on the mode of proof sought to be adopted going against the party tendering the evidence, the opportunity of seeking indulgence of the court for permitting a regular mode or method of proof and thereby removing the objection raised by the opposite party, is available to the party leading the evidence. Such practice and procedure is fair to both the parties. Out of the two types of objections, referred to hereinabove, in the latter case, failure to raise a prompt and timely objection amounts to waiver of the necessity for insisting on formal proof of a document, the document itself which is sought to be proved being admissible in evidence. In the first case, acquiescence would be no bar to raising the objection in a superior court."
Section 22 of the Consumer Protection Act, 1986 provides that Sections 12, 13 and 14 thereof and the rules made thereunder for disposal of the complaints by the District Forum, shall with such modification as may be considered necessary by the Commission, be applicable to the disposal of disputes by the National Commission. Section 12 of the 1986 Act provides for the manner in which the complaint shall be made. Section 13 prescribes the procedure on admission of the complaint. Sub-section (3) thereof reads:-
"(3) No proceedings complying with the procedure laid down in sub-sections (1) and (2) shall be called in question in any court on the ground that the principles of natural justice have not been complied with."
Apart from the procedures laid down in Section 12 and 13 as also the Rules made under the Act, the Commission is not bound by any other prescribed procedure. The provisions of the Indian Evidence Act are not applicable. The Commission is merely to comply with the principles of natural justice, save and except the ones laid down under sub-section (4) of Section 13 of the 1986 Act.
The proceedings before the National Commission are although judicial proceedings, but at the same time it is not a civil court within the meaning of the provisions of the Code of Civil Procedure. It may have all the trappings of the Civil Court but yet it can not be called a civil court. [ See Bharat Bank Ltd. v. Employees of the Bharat Bank Ltd.[1950 SCR 459] and Nahar Industries Ltd. v. Hong Kong & Shanghai Banking Corporation etc. (Civil Appeal arising out of SLP (C) No. 24715 of 2008 etc decided on 29th July, 2009)] Mr. Gupta, learned counsel appearing on behalf of Dr. Balram Prasad contended that the opinions, exhibits P-4, P-5 and P-6 are inadmissible in evidence.
The opinions of the experts as contained in the said documents are probably based on the hospital records and other relevant papers. Such opinions have been rendered on the basis of their expertise. They were notarized. The said opinions have been appended to the complaint petition even as documents. Respondents did not question the correctness thereof either before the court or before the Commission. They did not examine any expert to show that said opinion are not correct. The concerned respondents in their depositions before the Commission also did not challenge the correctness or otherwise of the said opinions. Even otherwise the deficiencies pointed out therein are explicit from the records.
This Court in J.J. Merchant (Dr) v. Shrinath Chaturvedi, [(2002) 6 SCC 635], held as under :-
"19. It is true that it is the discretion of the Commission to examine the experts if required in an appropriate matter. It is equally true that in cases where it is deemed fit to examine experts, recording of evidence before a Commission may consume time. The Act specifically empowers the Consumer Forums to follow the procedure which may not require more time or delay the proceedings. The only caution required is to follow the said procedure strictly. Under the Act, while trying a complaint, evidence could be taken on affidavits [under Section 13(4)(iii)]. It also empowers such Forums to issue any commission for examination of any witness [under Section 13(4)(v)]. It is also to be stated that Rule 4 in Order 18 CPC is substituted which inter alia provides that in every case, the examination-in-chief of a witness shall be on affidavit and copies thereof shall be supplied to the opposite party by the party who calls him for evidence. It also provides that witnesses could be examined by the court or the Commissioner appointed by it. As stated above, the Commission is also empowered to follow the said procedure. Hence, we do not think that there is any scope of delay in examination or cross-examination of the witnesses. The affidavits of the experts including the doctors can be taken as evidence. Thereafter, if cross-examination is sought for by the other side and the Commission finds it proper, it can easily evolve a procedure permitting the party who intends to cross-examine by putting certain questions in writing and those questions also could be replied by such experts including doctors on affidavits. In case where stakes are very high and still a party intends to cross-examine such doctors or experts, there can be video conferences or asking questions by arranging telephonic conference and at the initial stage this cost should be borne by the person who claims such video conference. Further, cross-examination can be taken by the Commissioner appointed by it at the working place of such experts at a fixed time."C.2. DIAGNOSIS AND TRAIL OF TREATMENT OVERVIEW OF TOXIC EPIDERMAL NNECROLYSIS Toxic Epidermal Nnecrolysis (TEN hereinafter) is also known as Lyell's Syndrome, epidermolysis acuta toxica and scalded skin syndrome. TEN begins with a non- specific prodome of 1- 14 days in atleast half of the patients. It is a severe and extensive variant of erythematobullous drug eruption. In TEN, the patient is ill with high fever occasionally suffers somnolence and lassitude. Because of the extensive area of eroded skin, large amount of body fluid is lost with consequent disturbances of electrolyte and fluid balance. [See Dermatology in General Medicine ( Fitz Patrick's) (5th Ed), and Comprehensive Dermatological Drug Therapy] NEGLIGENCE IN TREATMENT OF TEN For determining the question as to whether the respondents herein are guilty of any negligence, we may notice the treatment protocol.
Anuradha, it is conceded, was suffering from TEN. She had been positively diagnosed to be suffering from the said disease on 12th May, 1998. TEN is a spectrum of symptoms. The treatment protocol for TEN has undergone considerable change throughout the world.
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