Q: Delineate the citation of Malay Kumar Ganguly Vs. Sukumar Mukherjee, AIR 2010 SC 1162 ?

Ans: LEADING CASE: MALAY KUMAR GANGULY Vs. SUKUMAR MUKHERJEE

[AIR 2010 SC 1162]
The standard of care on the part of a medical professional involves the duty to disclose to patients about risks of serious side effects of medicines or about alternative treatments. If the doctor/hospital knowingly fails to provide some amenities that are fundamental for patients, it would certainly amount to medical malpractice.
An act which may constitute negligence or even rashness under torts may not amount to same under Sec. 304A, IPC. For criminal prosecution of a medical professional for negligence, 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.
Section 304A IPC is causing death by negligence. 
In this case, the patient Anuradha (a child psychologist) and her husband arrived in Kolkata from USA for a vacation on 1 April 1998. Anuradha developed a fever along with a skin rash on 25 April 1998. On 26 April, Dr. Sukumar Mukherjee attended to her on a professional visit at her parental residence. He did not prescribe any medicines. On 7 May, the skin rash appeared more aggressively, and the patient was taken to Dr. Mukherjee's clinic who diagnosed that she was suffering from Anglo-Neurotic Oedema with allergic vasculitis. He prescribed an injection of Depomedrol 80 mg twice daily for three days.
A relative of the patient filed criminal case and a complaint against the doctors and hospital in the National Consumer Dispute Redressal Commission (NCDRC) claiming a total compensation of more that Rs. 77 Crores. The NCDRC dismissed the complaint. Aggrieved complainant came in appeal to the Supreme Court.

The Complainant case was that Dr. Mukherjee from the beginning should have referred the deceased to a Dermatologist as she had skin rashes all over her body. Further, he made a wrong diagnosis of the deceased's illness and prescribing a long acting corticosteroid Depomedrol injection at dose of 80 mg twice daily was wrong which led to her death. In the hospital, no supportive therapy, which is imperative in 'TEN cases', was given. On the other hand, the Doctors argued that there had been no negligence or deficiency in service on their part as they prescribed medicines as per the treatment protocol noted in the text books. 

The Apex Court, while holding that doctors and hospital were negligent in treating the patient, noted that there is difference of opinion amongst the medical experts for treating TEN patients. Some experts support steroids for such patients, while others not. The court, in view of difference of opinion amongst experts, proceed on the assumption that steroid can be administered to such patients. However, the court found that treatment of the patient was not in accordance with the medical protocol. The treatment line followed by the doctor in administering 80 mg of Depomedrol injection twice daily is no supported by any school of thought and it was highly excessive. The immediate adverse effect of overuse of this steroid is immune-suppression and chance of infection.
Further, according to general practice, long-acting steroids (Depomedrol) are not advisable in any clinical condition. Instead of prescribing a quick-acting steroid, the prescription of a long- acting steroid without foreseeing its implications is an act of negligence on his part without exercising any care or caution. The doctors in hospital, after taking over the treatment of the patient did not take any remedial measure against the excessive amount of Depomedrol that was already stuck in the patient's body. On the other hand, they prescribed an excessive dose of quick-acting steroid. Moreover, vital parameters of Anuradha were not examined between 11.05.1998 to 16.05.1998 (Body Temperature, Respiration Rate, pulse, BP and urine output). Lastly, aggressive supportive therapy that is necessary for TEN patients was not provided in the hospital.

The Apex Court observed: Negligence is the breach of a duty caused by the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. Negligence means "either subjectively a careless state of mind, or objectively careless conduct. It is not an absolute term but is a relative one; is rather a comparative term.


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