(H) Penal Code (1860), S.304-A - Criminal medical negligence - Critically ill patient suffering from toxic epidermal necrolysis admitted in Hospital - Dying because of heavy dose of steroids and failure to administer supportive therapy - Specialist doctors in charge from time to time blaming each other and refusing to own responsibility - In such a scenario finding of medical negligence cannot be objectively determined - Doctrine of cumulative effect is not available in Criminal Law.
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. Hence though Apex Court found four specialist doctors negligent they were not held guilty for commission of an offence under S.304-A. Further more in the case of this nature Apex Court decided not to exercise its discretionary jurisdiction under Art.136 having regard to the fact that a judgment of acquittal was recorded by the High Court.
MALAY KUMAR GANGULY VS. DR. SUKUMAR MUKHERJEE & ORS.
2009-ALL SCR-2039 (Paras 217-219)
