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MEDICAL NEGLIGENCE - EXPERT EVIDENCE- MARKING OF DOCUMENT

MEDICAL NEGLIGENCE - EXPERT EVIDENCE- MARKING OF DOCUMENT

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The jurisprudential concept of negligence differs in civil and criminal law. What may be negligence in civil law may not necessarily be negligence in criminal law. For negligence to amount to an offence the element of mens rea must be shown to exist. For an act to amount to criminal negligence, the degree of negligence should be much high degree. A 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 ordinary senses and prudence would have done or failed to do.
The jurisprudential concept of negligence differs in civil and criminal law. What may be negligence in civil law may not necessarily be negligence in criminal law. For negligence to amount to an offence the element of mens rea must be shown to exist. For an act to amount to criminal negligence, the degree of negligence should be much high degree. A 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 ordinary senses and prudence would have done or failed to do.

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06/25/2013

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REPORTABLEIN THE SUPREME COURT OF INDIACRIMINAL APPELLATE JURISDICTIONCRIMINAL APPEAL NOS. 1191-1194 OF 2005Malay Kumar GangulyAppellantVersusDr. Sukumar Mukherjee and others.RespondentsWITHCIVIL APPELLATE JURISDICTIONCIVIL APPEAL NO. 1727 OF 2007Dr. Kunal Saha AppellantVersusDr. Sukumar Mukherjee and othersRespondents
J U D G M E N T
S.B. SINHA, J.
A. INTRODUCTION 
A. 1. BACKGROUND FACTS: 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 IvyLeague School (‘Columbia University’ in the New York State). Although adoctor by profession, Kunal has been engaged in research on H.I.V/ AIDSfor the past 15 years.They left U.S.A. for a vacation to India on 24
th
March, 1998. Theyarrived in Calcutta on 1
st
April, 1998. While in Calcutta, Anuradhadeveloped fever along with skin rash on 25
th
April, 1998. On 26
th
April, Dr.Sukumar Mukherjee, Respondent No. 1 herein attended and examinedAnuradha at her parental residence on a professional call. Dr. Mukherjeeassured the patient and her husband of a quick recovery and advised her totake rest but did not prescribe her any specific medicine. However, twoweeks thereafter, i.e., on 7
th
May, 1998, the skin rash reappeared moreaggressively. 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 nextthree days. Despite administration of the said injection twice daily,Anuradha’s condition deteriorated rapidly from bad to worse over the nextfew days. Accordingly, she was admitted at the Advanced MedicareResearch Institute (AMRI) in the morning of 11
th
May, 1998 under Dr.Mukherjee’s supervision. Anuradha was also examined by Dr. Baidyanath
2
 
Halder, Respondent No. 2 herein. Dr. Halder found that she had beensuffering from Erithima plus blisters. Her condition, however, continued todeteriorate further. Dr. Abani Roy Chowdhury, Consultant, Respondent No. 3 was also consulted on 12
th
May, 1998.On or about 17
th
May, 1998, Anuradha was shifted to Breach CandyHospital, Mumbai as her condition further deteriorated severely. She breathed her last on 28
th
May, 1998.Kunal sent a lawyer’s notice to 26 persons on 30
th
September, 1998.The first 19 addressees were those who had treated Anuradha at Kolkatawhile addressee numbers 20 to 26 were those who treated her in Mumbai.On or about 19
th
November, 1998 one of his relatives, Malay Kumar Ganguly filed a Criminal Complaint in the Court of Chief JudicialMagistrate, 24 Paraganas at Alipore against Dr. Sukumar Mukherjee, Dr.Baidyanath Halder and Dr. Abani Roy Chowdhury, respondent Nos. 1, 2 and3 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 whohad rendered medical advice/treatment/facilities to Anuradha between 23
rd
April, 1998 and 17
th
May, 1998 at Kolkata before the National Consumer Disputes Redressal Commission, New Delhi (Commission). However,
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