-By Akshay Saxena

What is medical negligence It is a result of breach of a legal duty, owned by the doctor to

his patient to exercise reasonable care and skill, which may lead to some physical, mental or financial disability.

A breach of this duty gives a patient the right to initiate action against the doctor.

Cases of negligence or malpractice are generally difficult to prove.

To win a favourable judgment, a clear causation relationship must be established between the negligent act and the injury caused.

Cont..

As no human being is perfect, so even the most renowned specialist could make a mistake in detecting or diagnosing the true nature of a disease.

A doctor can be held liable for negligence only if one can prove that she/ he is guilty of a failure that no doctor with ordinary skills would be guilty of if acting with reasonable care.

An error of judgement constitutes negligence only if a reasonably competent professional with the standard skills that the defendant professes to have, and acting with ordinary care, would not have made the same error.

Cont.. Doctors must exercise an ordinary degree of skill. However, they

cannot give a warranty of the perfection of their skill or a guarantee of cure. If the doctor has adopted the right course of treatment, if she/ he is skilled and has worked with a method and manner best suited to the patient, she/ he cannot be blamed for negligence if the patient is not totally cured.

Certain conditions must be satisfied before liability can be considered. The person who is accused must have committed an act of omission or commission; this act must have been in breach of the person’s duty; and this must have caused harm to the injured person.

The complainant must prove the allegation against the doctor by citing the best evidence available in medical science and by presenting expert opinion.

Penal Code 1860, Sections 304-A, 88, 92, 93-Criminal Liability for Medical

Negligence

304A – Causing death by negligence – “Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.”

KUNAL SAHA ( DR. ) Resident of 3937 Kul Circle South, Hilliard, Ohio-43026, USA and also of, Subol Apartment (Flat- E1), 1st Floor, 7 Nilgunge Road,

Kolkata – 700056COMPLAINANT / PETITIONER

Versus

AMRI HospitalDr. Sukumar MukherjeeDr. Abani RoychowdhuryDr. Baidyanath Halder

CASE NO. C/20678 OF 2011

Cont..

The Petitioner is a bona fide “overseas citizen of India” (OCI).

After graduating from Kolkata, India; the petitioner migrated to the USA in 1985 and settled there as an internationally recognized HIV/AIDS researcher.

Anuradha Saha, since deceased, had passed away during a social visit to India in 1998 due to gross medical negligence by several doctors practicing in the city of Kolkata in AMRI hospital.

Cont.. The petitioner lodged a written complaint with the West Bengal

Medical Council in 1999 alleging negligence and maltreatment of his wife, Anuradha Saha resulting into her death and seeking cancellation of the medical registration of the following three doctors who were primarily responsible for the death of Anuradha and the hospital namely :

1) Dr. Sukumar Mukherjee, (Regn. No. 26861) 2) Dr. Baidyanath Halder (Regn. No. 25474) 3) Dr. Abani Roy Chowdhury (Regn. No. 27014) 4) AMRI Hospital

Cont..

The petitioner states that while in Kolkata, Anuradha developed skin rashes, medically known as “Toxic Epidermal Necrolysis” or TEN, an acute dermatological condition usually caused by drug allergy, for which Dr. Mukherjee prescribed to administer Intra Mascular (IM) Injection of Depo-medrol at 80 mg. B.D. for 5 days in the most inappropriate and reckless manner.

Depo-medrol, a “long-acting” corticosteroid (steroid) is used for chronic conditions like asthma/arthritis and not for acute conditions like TEN. Furthermore, the maximum dose of Depo-medrol for any clinical condition is 40-120 mg at 1-2 weeks intervals.

Cont..

The enormous amount of Depomedrol at 80 mg twice daily for 5 days (from May 6, 1998 to May 11, 1998) as advised by Dr. Mukherjee was unprecedented in the parlance of medical science. [Depomedrol 60 mg BD x 3 days is neither recommended in text books or recommended by the manufacturer.]

Due to such overdose, Anuradha’s condition worsen. So, her case was transferred to the senior, Dr. Baidyanath Halder.

Cont..

The dose of Prednisolone was further increased by Dr. Halder to 120 mg when the patient was already receiving Depomedrol 80 mg I.M. B.D.

The condition of the patient did not improve and rather deteriorated.

Both Dr. Mukherjee and Dr. Haldar thought “other drugs” to be the cause of TEN, they should have thought of the drugs taken from 6 May, 98 to 11 May, 98 to be the offending drug.

This massive overdose of Depo-medrol eventually caused or significantly contributed to the untimely death of Anuradha.

Cont.. Dr. Mukherjee is an eminent and experienced consultant in

Medicine. His initial mistake was to treat the patient himself when Mrs. Saha had only dermatological manifestations without any systemic signs and symptoms except mild fever.

He should have referred the patient to a competent dermatologist straightway for investigations and treatment specially when he was leaving the country within a few days.

On the contrary, he put the patient on a high dose of steroids without any definitive diagnosis.

Cont..

Regarding the treatment giving by Dr. Halder and is suspision about drug being the cause of TEN was rather casual.

As senior specialist, he should have thought of staphylococcal scalding syndrome and superficial type of Steven Jhonson’s syndrome and should have steered on the need of biopsy before raising the dose of oral steroids to 120 mg.

He did not cared to see the treatment already being given to the patient.

It is regrettable to note that Dr. Halder was against joint consultation with the doctor who was treating the patient.

Cont..

The Apex Court passed a final judgment on August 7, 2009 disposing both the criminal and civil appeals together in which the Supreme Court has categorically held the three accused doctors and AMRI hospital guilty for medical negligence[Section 304A, Section 120B, Section 357(3)]and responsible for the death of Anuradha.

The court ordered a compensation of Rs.5.96 crore, which with interest crosses Rs.11 crore.

This is the highest damages ever paid in the medical negligence case in India.

References

1. Medical negligence by P.D. Mathew and P.M. Bakshi, IVth edition.

2. http://www.medeforum.com/negligence-cases

3. https://indialawyers.wordpress.com/category/medical-negligence/

Thank you