Doctors acquitted of criminal negligence

http://www.hindu.com/2009/08/09/stories/2009080959691000.htm

New Delhi: The Supreme Court has upheld a Calcutta High Court judgment acquitting three doctors of criminal negligence in the death of Anuradha Saha, wife of Kunal Saha, a doctor based in the United States.

Anuradha Saha, a child psychologist, died in 1998 at 36, following complications in treatment at the Advanced Medicare Research Institute (AMRI), Kolkata. Dr. Saha’s relative, Malai Ganguly, registered a criminal case against doctors Abani Roy Choudhury, Mukherjee and Baidyanath Halder, alleging medical negligence.

While Dr. Choudhury was acquitted by the trial court, it sentenced the other two to three months’ imprisonment. The High Court, on appeal, acquitted both.

Meanwhile, a complaint filed by Dr. Saha seeking a compensation of Rs. 77 lakh was dismissed by the National Consumer Disputes Redressal Commission. The present appeals were filed by Malai Ganguly and Dr. Saha against the High Court judgment and the Commission’s order.

On Friday, A Bench, consisting of Justices S.B. Sinha and Deepak Verma, dismissed the criminal appeals but slapped costs of Rs. 5 lakh on the AMRI and Rs. 1 lakh on Dr. Mukherjee.

Criminal intention
The Bench, in its 132-page judgment, said: “For negligence to amount to an offence the element of mens rea [criminal intention] must be shown to exist. For an act to amount to criminal negligence, the degree of negligence should be much high. Negligence which is not of such a high degree may provide a ground for action in civil law but cannot form the basis for prosecution. To prosecute a medical professional for negligence under criminal law it must be shown that the accused did something or failed to do something which in the given facts and circumstances no medical professional in his senses and prudence would have done or failed to do.”

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 the differing nature of negligence exercised by various actors, make it very difficult to distil individual extent of negligence with respect to each of the respondents.”

Writing the judgment, Justice Sinha said: “The law on medical negligence also has to keep up with the advances in medical science as to treatment as also diagnostics. Doctors must increasingly engage with patients during treatment, especially when the line of treatment is a contested one and hazards are involved. Standards of care in such cases will involve the duty to disclose to patients the risks of serious side-effects or about alternative treatments. In the times to come, litigation may be based on the theory of lack of informed consent.”

As regards the civil appeal, the Bench said the Commission was clearly wrong in opining that there was no negligence on the part of the hospital or the doctors. It, therefore, remitted the matter to the Commission for determining the quantum of compensation preferably within six months. “We further direct that if any foreign expert is to be examined, it shall be done only through videoconferencing and at the cost of respondents.”