The Hon'ble Supreme Court of India has been kind to set the ball rolling by pronouncing a path breaking judgments in long pending appeals concerning medical negligence case in both civil & criminal involving India's highest ever compensation case (Rs. 77 crores plus interest) vide its judgment dated 7.8.2009 by none other than one of the most respected Judges Hon’ble Mr. Justice SB Sinha (now retired). Which if taken in right letter & spirit would bring in a sea change in both medical fraternity liability and also in practice involving medical negligence. The pertinent part is as follows:
JUDGMENT
S.B. SINHA, J.
“……… It is generally expected that very senior doctors would behave responsibly, and they were entitled to take any defence which is available to them but they should not resort to mudslinging. This being a case where both sides being doctors, fair dealings were expected from them.
CUMULATIVE EFFECT OF NEGLIGENCE
A patient would feel the deficiency in service having regard to the cumulative effect of negligence of all concerned. Negligence on the part of each of the treating doctors as also the hospital may have been contributing factors to the ultimate death of the patient. But, then in a case of this nature, the court must deal with the consequences the patient faced keeping in view the cumulative effect.
In the instant case, negligent action has been noticed with respect to more than one respondent. A cumulative incidence, therefore, has led to the death of the patient. It is to be noted that doctrine of cumulative effect is not available in criminal law. The complexities involved in the instant case as also differing nature of negligence exercised by various actors, make it very difficult to distil individual extent of negligence with respect to each of the respondent. In such a scenario finding of medical negligence under section 304-A cannot be objectively determined.
CONCLUSION
In view of our discussions made hereinbefore, we are of the opinion that for the death of Anuradha although Dr. Mukherjee, Dr. Halder, Dr. Abani Roy Chowdhury, AMRI, Dr. B. Prasad were negligent, the extent thereof and keeping in view our observations made hereinbefore, it cannot be said that they should be held guilty for commission of an offence under Section 304-A of the Indian Penal Code. We furthermore in a case of this nature do not intend to exercise our discretionary jurisdiction under Article 136 of the Constitution of India having regard to the fact that a judgment of acquittal has been recorded by the Calcutta High Court.
OBSERVATIONS OF THE CALCUTTA HIGH COURT
We must express our agony in placing on record that the Calcutta High Court in its judgment has made certain observations which apart from being not borne out from the records, are also otherwise highly undesirable.
Some of the conclusions arrived at by the High Court are not based on the findings emerging from the records. These conclusions are as produced as under:
The High Court observed that Anuradha died because of interference of Kunal. Such an observation was made on the basis of some representations although his name did not appear in the records of AMRI. It was stated:
In a case of this nature, Kunal would have expected sympathy and not a spate of irresponsible accusation from the High Court.
SUMMARY
For the reasons aforementioned, the criminal appeals are dismissed. As regards the civil appeal, the matter is remitted to the National Commission for determining the compensation with a request to dispose of the matter as expeditiously as possible and preferably within a period of six months from the date of receipt of a copy of this judgment. Civil Appeal is disposed of accordingly.
We, keeping in view the stand taken and conduct of AMRI and Dr. Mukherjee, direct that costs of Rs. 5,00,000/- and Rs. 1,00,000/- would payable by AMRI and Dr. Mukherjee respectively.
We further direct that if any foreign experts are to be examined it shall be done only through video conferencing and at the cost of respondents.
The full text of the judgments can be had fro www.supremecourtofindia.nic.in
