Case: Malay Kumar Ganguly Vs. Sukumar Mukherjee

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 Ivy League School (`Columbia University in the New York State). Although a doctor by profession, Kunal has been engaged in research on H.I.V/ AIDS for the past 15 years.They left U.S.A. for a vacation to India on 24th March, 1998. They arrived in Calcutta on 1st April, 1998. While in Calcutta, Anuradha developed fever along with skin rash on 25th April, 1998. On 26th April, Dr. Sukumar Mukherjee, Respondent No. 1 herein attended and examined Anuradha at her parental residence on a professional call. Dr. Mukherjee assured the patient and her husband of a quick recovery and advised her to take rest but did not prescribe her any specific medicine. However, two weeks thereafter, i.e., on 7th May, 1998, the skin rash reappeared more aggressively. 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 next three days. Despite administration of the said injection twice daily, Anuradhas condition deteriorated rapidly from bad to worse over the next few days. Accordingly, she was admitted at the Advanced Medicare Research Institute (AMRI) in the morning of 11th May, 1998 under Dr. Mukherjees supervision. Anuradha was also examined by Dr. Baidyanath Halder, Respondent No. 2 herein. Dr. Halder found that she had been suffering from Erithima plus blisters. Her condition, however, continued to deteriorate further. Dr. Abani Roy Chowdhury, Consultant, Respondent No. 3 was also consulted on 12th May, 1998.On or about 17th May, 1998, Anuradha was shifted to Breach Candy Hospital, Mumbai as her condition further deteriorated severely. She breathed her last on 28th May, 1998.Kunal sent a lawyers notice to 26 persons on 30th September, 1998. The first 19 addressees were those who had treated Anuradha at Kolkata while addressee numbers 20 to 26 were those who treated her in Mumbai.On or about 19th November, 1998 one of his relatives, Malay Kumar Ganguly filed a Criminal Complaint in the Court of Chief Judicial Magistrate, 24 Paraganas at Alipore against Dr. Sukumar Mukherjee, Dr. Baidyanath Halder and Dr. Abani Roy Chowdhury, respondent Nos. 1, 2 and 3 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 who had rendered medical advice/treatment/facilities to Anuradha between 23rd April, 1998 and 17th May, 1998 at Kolkata before the National Consumer Disputes Redressal Commission, New Delhi (Commission). However, pursuant to the orders of the Commission names of some of the respondents were struck off.In the said petition the complainant claimed an amount of compensation of Rs. 77,76,73,500/- with interest for the alleged deficiency in the service rendered by Respondent Nos. 1, 2, 3, 5, 6 and AMRI hospital (Respondent No.4).On or about 17.7.1999, a complaint was filed by Kunal against Dr. Sukumar Mukherjee, Dr. Baidyanath Halder and Dr. Abani Roy Chowdhury before the West Bengal Medical Council (WBMC) making allegations similar to the one he had made in his complaint before the Commission.On or about 29th May, 2000 , OP No. 179 of 2000 was filed by Kunal against the doctors, including Dr. Udwadia of the Breach Candy Hospital at Mumbai and the hospital itself before the Commission.Before the learned Chief Judicial Magistrate, in the said criminal complaint a large number of witnesses were examined. A large number of documents were also marked as exhibits. The learned Chief Judicial Magistrate, Alipore by his judgment and order dated 29th May, 2002 found Respondent Nos. 1 and 2 guilty of commission of an offence under Section 304-A of the Indian Penal Code and sentenced them to undergo simple imprisonment for three months and to pay a fine of Rs.3,000/- each and in default to undergo a further simple imprisonment for 15 days. Respondent No.3, Dr. Abani Roy Chowdhury was, however, acquitted.The West Bengal Medical Council dismissed the complaint filed by Dr. Kunal by its order dated 1st July, 2002.On 25th May, 2003 the complainant-Kunal withdrew O.P. No.179/2009 filed before the Commission against the doctors/Breach Candy Hospital.Against the order of the learned Magistrate, Respondent No.1 filed Criminal Appeal which was marked as Criminal Appeal No.55 of 2002 and Respondent No.2 filed Criminal Appeal No. 54 of 2002 before the learned Sessions Judge at Alipore, whereas the complainant, Mr. Malay Kumar Ganguly, filed a revision application being C.R.R. No. 1856 of 2002 for enhancement of the punishment imposed on Respondent Nos. 1 and 2. The complainant also filed another revision application before the High Court questioning the legality of the judgment with respect to acquittal of Respondent No.3. The Calcutta High Court withdrew the appeals preferred by Respondent Nos. 1 and 2 before the learned Sessions Judge to itself and heard the criminal appeals and revision petitions together.By a judgment and order dated 19th March, 2004 the appeals preferred by Respondent Nos. 1 and 2 were allowed while the Criminal Revision Petitions filed by the complainant were dismissed. The said order has been challenged before us by way of Criminal Appeal Nos. 1191-1194 of 2005.The Commission also by its judgment and order dated 1st June, 2006 dismissed O.P. No. 240 of 1999. Civil Appeal No.1727 of 2007 arises out of the said order.

Reasoning:
C.3. FINDINGS AND ANALYSIS WITH RESPECT TO SO CALLED CLEAVAGE OF OPINION FINDINGS ON SO CALLED CLEAVAGE OF OPINIONAppellant, thus, has placed on record the view points of expertsboth of theid group.Would it amount to cleavage of opinion so as to enable the court to arrive at a safe conclusion that no negligence is proved or there was no deficiency in service? In other words, the question is as to whether the treatment of Anuradha was in accordance with the medicalprotocol. In our opinion, the answer must be rendered in the negative. Those who support use and administration of steroid do so with note of caution. They in no uncertain terms state that the same should be used at a preliminary stage. Respondents do not spell out as to what would be the preliminary stage. The preliminary stage must have started with the onset of the disease. She had been suffering from skin rash from 3rd week of April, 1998. It increased with the passage of time. The cause of such eruption was not ascertained. In fact what caused the onset of disease was not known. It may be from Chinese food or it may even be from use of vitamin.On and from 7th May, 1998, she was prescribed injection Depomedrol twice a day and Wysolone. It was continued upto 13th May, 1998, nobody even thought of stopping the injection. Dr. Halder although stopped Depomedrol injection from 13th May, 1998, but prescribed a high dose of steroid.No doctor posed unto themselves a basic question why despite use of steroid, condition of the patient was going from bad to worse. It is agreed across the board and at least during trial, that supportive treatment should have been given. The medicine was propagated which did not exist. The medical literatures were not consulted. Even for pulse therapy Depomedrol could not have been used and only Solumedrol could have been used. Kunal in his evidence explained the difference between the two. Dr. Mukherjee in his deposition indirectly accepted the same. Each of thosegroup spoke of a single injection. Nobody suggested on the face of the voluminous medical literature and authoritative opinions of the experts that two injections daily could be prescribed by any prudent physician. A great deed of confusion was sought to be created between one kind of steroid and another. Vague questions were asked from the experts to show that steroids may be used but Dr. Pasricha stated that only a quick acting steroid should be used. Depomedrol is not a quick actingHigh Court as also the Commission principally proceeded on the premise that the respondents herein are not liable either for any act of criminal misconduct or negligence because of cleavage of opinion. The cleavage of opinion, if any, as we have noticed hereinbefore, is betweened treatment protocol so far as thegroup is concerned has also been noticed by us. We have proceeded to determine the question of negligence on the part of the respondents herein principally on the premise that even if the opinion of thegroup is followed, the respondents have failed and/or neglected to even act strictly in terms of the treatment protocol laid down by them. The opinion of thegroup appears to be more scientific and structured but the same by itself, we are conscious of the fact, would not lead us to the conclusion that the respondents are guilty of gross negligence.We may, however, notice that Mr. Fitz Patrick in his book Dermatology in General Medicine (5th Edition), inter alia, opined asAccording to our view, agreement should be used on following for the treatment of TEN:a. Treatment in burn units should be strived for in exceptional cases but is not generally necessary.b. Treatment has to be individually tailored according to cause type and stage and presence and type of complications.c. Systemic glucocorticoids should not be used routinely but are justified in the early stages of drug induced TEN. They should be given in doses from 80 to 120 mg of methlypredisolone per day by mouth, for several days until disease progression has ceased. Dosages should be tapered quickly and cautiously since no further benefit can be expected thereafter and the untoward effects may then predominate.d. Treatment may focus on early detection and prevention of the most fatal complication e.g. overwhelming infection. Cultures from skin and mucosal erosions, must be regularly performed.e. Blood gases and fluid, electrolytes and protein balance must be monitored and adjusted appropriately. Fluid replacement regimens as used for burn patients.f. Supportive care is of great importance and particular attention must be paid to a high calorie and highprotein diet.g. Debridgement of necrotic skin should not performed before disease activity ceases.3. Course and Prognosis: The following factors appear to be unfavourable prognostic signs: old age, extensive skin lesions, nuetropenia, impaired renal function and intake of multiple drugs. Septesemia, gastrointestinal hemorrhage, pnuemoina and fluid and electrolyte imbalance leading to renalinsufficiency are major complications leading to death."As noticed hereinbefore, precautions as also the course of actions suggested by the authors have not been undertaken by the respondents. It is to be noted that the learned authors expertise in the field is neither in doubt nor in dispute, particularly when both parties have extensively relied thereupon. Even the suspected offending drug was not withdrawn at later stages. This drug is considered to be a real risk for the patient suffering from TEN. The medicine has also been administered having regard to the physical condition of the patient. They were required to be given only as a part of the total program. We may also place on record that there has been a cleavage of opinion in regard to mortality rate. Whereas according to the one group of experts in TEN patients when properly treated and in particular given supportive treatment, the mortality rate isthe respondents contend that that in fact the mortality rate is quite high beingCONTRIBUTORY NEGLIGENCEThe High Court as also the Commission opined that the death of Anuradha took place not because of any negligence on the part of the doctors of AMRI but by reason of interference by Kunal Saha. It was on the insistence of Kuanl Saha that the patient was transferred to Bombay. It has been submitted that it was the infection which developed during transportation which ultimately proved fatal.Interference by Kunal at AMRI was sought to be proved through Sutapa Chanda, Nursing Superintendent at AMRI, who appeared asHowever, the statement of the said Nursing Superintendent in regard to the alleged interference by Kunal is not borne out from the record. As a matter of fact she had not been able to explain the medicines which were to be administered to her(Ld. complainant counsel sows the witness Exbt. 8). What do you understand by this line "Fusys 200 mg. / weekly once";3rd line from the end?Ans. Regarding this question I like to say all instructions for mediction in Exbt. 8 were carried out by Dr. Kunal Saha but not by my nurses. If I can not understand this instruction I would have made queries and doctor would clear it. But I had no such chance to make queries regarding this."It is to be noted here that Nursing Superintendent being a professional cannot take this plea. Moreover, the same is not borne out of records at AMRI. Even if we assume this statement to be true, in a professional setting of this nature, these interferences should have been resisted by them. Interference cannot be taken to be an excuse for abdicating ones responsibility especially when an interference could also have been in the nature of suggestion.Same comments were said to have been made by Dr. Halder while making his statement under Section 313 of the Code of Criminal Procedure. They are admissible in evidence for the said purpose. Similarly the statements made by Dr. Mukherjee and Dr. Halder in their written statements before the National Commission are not backed by any evidence on record. Even otherwise, keeping in view the specific defence raised by them individually, interference by Kunal, so far as they are concerned, would amount to hearsay evidence and not direct evidence.Dr. K. Nandy in his evidence stated that he was not allowed to change the dressings on 15th May and 16th May, 1998. However, according to him, he forced his decision to do the dressing on 17th May, 1998 before she was taken away from the hospital.However, it appears from the AMRI records that the name of Kunal only appears once i.e. when he got Anuradha admitted in the hospital. His name is not borne out from any other record. So far as the statement of Dr. Nandy is concerned, Kunals explanation is that he did not follow the medical protocol in the matter of dressing. This may or may not be correct.We may notice that whenever any interference in contrast to the AMRI was attempted to be made by the patient party at Breach Candy Hospital, it had scrupulously been placed on record. Wherever "Dr. Saha" appears in the record, it is evident that the same refers to the elder brother of Kunal, who is a surgeon. However, when there is any discussion with both the brothers, like in the case of Dr. Udwadia, it had been recordedIt is accepted that the elder brother of Kunal came to Mumbai on 17th May, 1998 itself. He brought with him a new antibiotic named "Quinolone" which was not available in India. He persuaded Dr. Udwadia to administer the said injection. This discussion between them has also been recorded. Some adverse remarks have also been recorded with regard to the conduct of Dr. Saha. Dr. Udwadia has noticed in the records of the Breach Candy Hospital that he tolerated the said conduct on the part of the elder brother of Kunal solely for the patients sake.Though some of the suggestions of Dr. Saha did not seem particularly useful to Dr. Udwadia, but those measures which were not harmful to the patient were administered. We, however, may also notice that where Dr. Udwadia thought that there could be some harm to the patient, he did not agree thereto. He, therefore, acted in a professional manner.We may also place on record that despite such elaborate and careful treatment meted out to Anuradha, her condition had been worsening; Dr. Udwadia even agreed to administer the injection "Quinolone" during her last day as he might have thought that there was no harm in trying the same at that juncture.Respondents also sought to highlight on the number of antibiotics which are said to have been administered by Kunal to Anuradha while she was in AMRI contending that the said antibiotics were necessary. Kunal, however, submitted that the said antibiotics were prescribed by the doctors at AMRI and he did not write any prescription. We would, however, assume that the said antibiotics had been administered by Kunal on his own, but it now stands admitted that administration of such antibiotics was necessary.To conclude, it will be pertinent to note that even if we agree that there was interference by Kunal Saha during the treatment, it in no way diminishes the primary responsibility and default in duty on part of the defendants. In spite of a possibility of him playing anrole during the medical proceedings, the breach of duty to take basic standard of medical care on the part of defendants is not diluted. To that extent, contributory negligence is not pertinent. It may, however, have some role to play for the purpose of damages.C.6.OF NECESSARY PARTIESRespondents contend that Dr. Kunal had been selective in prosecuting three principal doctors on the criminal side who allegedly treated Anuradha but some more before the Commission. Contending that no reason has been assigned as to why case against Dr. A.K. Ghoshal as also Breach Candy Hospital and doctors treating Anuradha at Bombay from 17th May, 1998 till 28th May, 1998 had been given up, the learned counsel urged that these appeals should be dismissed on that groundargument has also been advanced that Anuradha was treated by as many as 16 doctors and, thus, there was no reason as to why only the respondents should have been proceeded against. Proceeding should be initiated both under the criminal law as also the tort law only against those who are specifically found to be guilty of criminal misconduct or medical negligence or deficiency in service and not against all. Apart from making a general submission, it has not been pointed out as to what difference would have been made if others were also impleaded as parties. The medical records were before the court. The hospital records of both AMRI and Breach Candy were also before it. AMRI records contained 22 pages, records of Breach Candy runs into more than 400 pages. No party had relied on any evidence other than those records as also the oral evidence and documentary evidence brought on record by them. Respondents have also not pointed out as to how treatment by any other doctor has contributed in any manner to the death of Anuradha.Submissions have also been made at the bar that Kunal issued notices to a large number of persons but withdrew the cases against most of them. It was placed before us that in the first notice there were as many as 26 addresses and in the complaint filed before the National Commission, there were 19 addresses. Withdrawal of cases against some of them, in our opinion, is not of much significance. The Directors of AMRI were impleaded as parties. Cases against them had also been withdrawn and, in our opinion, rightly so as most of them were liable in their personal capacity. Dr. Kunal says that the proceeding against Breach Candy Hospital and doctors treating Anuradha had been withdrawn as the principal grievance against the hospital was that they did not have any burn ward although he was already informed thereabout. Burn ward was also not there in AMRI. In fact, it was brought on record that no nursing home in Calcutta has a separate burn ward. Absence of burn ward by itself, thus, might not be a contributory factor although existence thereof was highly desirable keeping in view the treatment protocol.We must bear in mind that negligence is attributed when existing facilities are not availed of. Medical negligence cannot be attributed for not rendering a facility which was not available. In our opinion, if hospitals knowingly fail to provide some amenities that are fundamental for the patients, it would certainly amount to medical malpractice. As it has been held in Smt. Savita Garg (supra), that a hospital not having basic facilities like oxygen cylinders would not be excusable. Therein this Court has opined that even thehumanitarian approach of the hospital authorities in no way can be considered to be a factor in denying the compensation for mental agony suffered by the parents. The aforementioned principle applies to this case also in so far as it answers the contentions raised before us that the three senior doctors did not charge any professional fees.In any event, keeping in view of the said decision, we are of the firm opinion that notices to a large number of persons and withdrawal of cases against some of them by itself cannot be considered to be a relevant factor for dismissal of these appeals.D. CIVIL LIABILITY UNDER TORT LAW AS ALSO UNDER CONSUMER PROTECTION ACTIn this case, we are concerned with the extent of negligence on the part of the doctors, if any, for the purpose of attracting rigours of Section 304A of the Indian Penal Code as also for attracting the liability to pay compensation to the appellant in terms of the provisions of the Consumer Protection Act, 1986. We intend to deal with these questions separately.It is noteworthy that standard of proof as also culpability requirements under Section 304A of Indian Penal Code stands on an altogether different footing. On comparison of the provisions of Penal Code with the thresholds under the Tort Law or the Consumer Protection Act, a foundational principle that the attributes of care and negligence are not similar under Civil and Criminal branches of Medical Negligence law is borne out. An act which may constitute negligence or even rashness under torts may not amount to same under section 304A.Bearing this in mind, we further elaborate on both the questions separately.D.1. LAW OF NEGLIGENCE UNDER TORT LAWNegligence 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. [See Law of Torts, Ratanlal & DhirajlalEdition 2002, atmeans "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. In determining whether negligence exist in a particular case, all the attending and surrounding facts and circumstance have to be taken into account." [See Municipal Corpn. Of Greater Bombay v. Laxman Iyer, (2003) 8 SCC 731 , para 6; Adavanced Law Lexicon, P Ramanatha Aiyar, 3rd ed. 2005, p. 3161]Negligence is strictly nonfeasance and not malfeasance. It is the omission to do what the law requires, or the failure to do anything in a manner prescribed by law. It is the act which can be treated as negligence without any proof as to the surrounding circumstances, because it is in violation of statute or ordinance or is contrary to the dictates of ordinarylaw on medical negligence also has to keep up with the advances in the medical science as to treatment as also diagnostics. Doctors increasingly must engage with patients during treatments especially when the line of treatment is a contested one and hazards are involved. Standard of care in such cases will involve the duty to disclose to patients about 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. A significant number of jurisdictions, however, determine the existence and scope of the doctors duty to inform based on the information a reasonable patient would find material in deciding whether or not to undergo the proposed therapy. [SeeCanterbury v. Spence,F.2d 772 (D.C. Cir. 1972), cert. denied, 409 U.S.(19r72); see alsoCobbs v. Grant, 8 Cal. 3d4 Cal. Rptr.2 P.2d 1n v. Hardy, 37 Colo. App.9 P.2d 1099In this respect, the only reasonable guarantee of a patients right of bodily integrity andis for courts to apply a stringent standard of disclosure in conjunction with a presumption of proximate cause. At the same time, a reasonable measure of autonomy for the doctor is also pertinent to be safeguarded from unnecessary interference.D.2. TRANSPORTATIONSo far as transportation of Anuradha from Kolkata to Mumbai is concerned, we must place on record that a certificate in that behalf was given by Dr. Baidyanath Halder correctness whereof, except for the words "for better treatment" is not in dispute. Dr. Halder does not contend that the contents of the same are wrong. He merely says that the same was issued at the instance of the patient. The submission of Dr. Halder that he had issued the certificate without seeing the patient cannot be believed. If that be so, such a certificate could have been issued by Dr. Balram Prasad and/or any other doctor. Why he had taken the burden of issuing such a certificate is not explained.We are of the opinion that a conclusion as to whether the words "for better treatment" have been inserted in the said certificate or not or the same was done at the instance of Kunal, is wholly unnecessary for our purpose. Theonly question which arises is as to whether there was any risk of Anuradha developing infection due to exposure duringtransportation. She was flown to Mumbai by an exclusive chartered flight (air ambulance) ofRescue of Delhi. Kunal had to pay about $ 2000 for the said purpose. Respondents did not suggest that the service provided by the said airlines was of inferior character or sufficient precautions were not taken during transportation. In fact, the condition of Anuradha was so critical that there was no other option but to take her to a better hospital. Her transportation to Mumbai was necessary and was not an act borne out of desperation alone.We may notice that even a couple of Kunals friends, who were doctors, came to Mumbai by Jet Airways flight.It appears that East West Rescue of Delhi, which provided air ambulance, must have taken all necessary precautions. Although lot of literature on the subject relating to the services of the said airlines showing that it is considered to be one of best in the world is available, we refrain from dealing with the same, as it is not necessary.Dr. Udwadia made a comment that transportation of Anuradha from Kolkata to Mumbai may have exposed her to infection. He, however, added a proviso theretounless better care was taken. There was no reason as to why the proper care was not taken, particularly seeing her condition. There is no evidence on record leading to an opposite conclusion. Dr. Nandy, stated dressing was necessary before transportation. He must have done so keeping in view the necessity of prevention of further infection during flight. At Bombay, Dr. Kulkarni noticed a green patch showing old infection. It must have escaped the notice of even Dr. Nandy. Dr. Kulkarni noticing the same, observed that the patients condition was worse than he anticipated.D.3. LEGITIMATE EXPECTATIONKunal approached the best doctors available. He admitted his wife at AMRI on the recommendation of Dr. Mukherjee, evidently, expecting the best possible treatment from the renowned doctors and a renowned hospital. It was not too much for a patient to expect the best treatment from the doctors of the stature of Dr. Mukherjee, Dr. Halder and Dr. Abani Roy Chowdhury. Services of other experts in fields were requisitioned by the Hospital. References were made and the Hospital on the basis of the recommendations made by the doctors themselves consulted the best doctors in their respective fields. Kunal or Anuradha or his relatives never interfered therewith. They did not call any doctor of their choice to the Hospital. In fact, after Dr. A.K. Ghoshal came to know that Anuradha was suffering from TEN, he suggested a line of treatment which was not adhered to keeping in view the fact that Dr. Halder and hospital authorities were in charge of the case.The standard of duty to care in medical services may also be inferred after factoring in the position and stature of the doctors concerned as also the hospital; the premium stature of services available to the patient certainly raises a legitimate expectation. We are not oblivious that the source of the said doctrine is in administrative law. A little expansion of the said doctrine having regard to an implied nature of service which is to be rendered, in our opinion, would not be quite out of place.AMRI makes a representation that it is one of the best hospitals in Calcutta and provides very good medical care to its patients. In fact the learned Senior Counsel appearing on behalf of the respondents, when confronted with the question in regard to maintenance of the nurses register, urged that it is not expected that in AMRI regular daily medicalwould not have been conducted. We thought so, but the records suggest otherwise. The deficiency in service emanates therefrom. Even in the matter of determining the deficiency in medical service, it is nowINDIVIDUAL LIABILITY OF THE DOCTORSThere cannot be, however, by any doubt or dispute that for establishing medical negligence or deficiency in service, the courts would determine the following:(i) No guarantee is given by any doctor or surgeon that the patient would be cured.(ii) The doctor, however, must undertake a fair, reasonable and competent degree of skill, which may not be the highest skill.(iii) Adoption of one of the modes of treatment, if there are many, and treating the patient with due care and caution would not constitute any negligence.(iv) Failure to act in accordance with the standard, reasonable, competent medical means at the time would not constitute a negligence. However, a medical practitioner must exercise the reasonable degree of care and skill and knowledge which he possesses. Failure to use due skill in diagnosis with the result that wrong treatment is given would be negligence.(v) In a complicated case, the court would be slow in contributing negligence on the part of the doctor, if he is performing his duties to be best of his ability.Bearing in mind the aforementioned principles, the individual liability of the doctors and hospital must be judged.We enumerate heretobelow the duty of care which ought to have been taken and the deficiency whereof is being complained of in the criminal case and the civil case, respectively, so far as respondent Nos. 1 to 3 are concerned.When Dr. Mukherjee examined Anuradha, she had rashes all over her body and this being the case of dermatology, he should have referred her to a dermatologist. Instead, he prescribed "Depomedrol" for the next 3 days on his assumption that it was a case of "vasculitis". The dosage of 120 mg Depomedrol per day is certainly a higher dose in case of a TEN Patient or for that matter any patient suffering from any other bypass of skin disease and the maximum recommended usage by the drug manufacturer has also been exceeded by Dr. Mukherjee. On 11th May, 1998, the further prescription of Depomedrol without diagnosing the nature of the disease is a wrongful act on his part.According to general practice, long acting steroids are not advisable in any clinical condition, as noticed hereinbefore. However, instead of prescribing to a quick acting steroid, the prescription of a long acting steroid without foreseeing its implications is certainly an act of negligence on his part without exercising any care or caution. As it has been already stated by the Experts who were cross examined and the authorities that have been submitted that the usage ofmg is not permissible in TEN.Furthermore, after prescribing a steroid, the effect of immunosuppression caused due to it, ought to have been foreseen. The effect of immunosuppression caused due to the use of steroids has affected the immunity of the patient and Dr. Mukherjee has failed to take note of the said consequences.After taking over the treatment of the patient and detecting TEN, Dr. Halder ought to have necessarily verified the previous prescription that has been given to the patient. On 12th May, 1998 although `depomedrol was stopped, Dr. Halder did not take any remedial measures against the excessive amount of `depomedrol that was already stuck in the patients body and added more fuel to the fire by prescribing a quick acting steroid `Prednisolone at 40mg three times daily, which is an excessive dose, considering the fact that a huge amount of "Depomedrol" has been already accumulated in the body.Life saving `supportive therapy including IV fluids/ electrolyte replacement, dressing of skin wounds and close monitoring of infection is mandatory for proper care of TEN patients. Skin(wound) swap and blood tests also ought to be performed regularly to detect the degree of infection. Apart from using the steroids, aggressive supportive therapy that is considered to be rudimentary for TEN patients was not provided by Dr. Halder. Furtherof a patient such as temperature, pulse,and blood pressure were not monitored. All these factors are considered to be the very basic necessary amenities to be provided to any patient, who is critically ill. The failure of Dr. Halder to ensure that these factors are monitored regularly is certainly an act of negligence.Occlusive dressing were carried as a result of which the infection had been increased. Dr Halders prescription was against the Canadian treatment protocol reference to which we have already made herein before.It is the duty of the doctors to prevent further spreading of infections. How that is to be done is the doctors concern. Hospitals or nursing homes where a patient is taken for better treatment should not be a place for getting infection.After coming to know that the patient is suffering from TEN, Dr. Abani Roy Chowdhury ought to have ensured that supportive therapy had been given. He had treated the patient along with Dr. Halder and failed to provide any supportive therapy or advise for providing IV fluids or other supplements that is a necessity for the patient who was critically ill.As regards, individual liability of the respondent Nos 4, 5 and 6 is concerned, we may notice the same hereunder.As regards AMRI, it may be noticed:(i) Vital parameters of Anuradha were not examined between 11.05.1998 to 16.05.1998 (Body Temperature, Respiration Rate, pulse, BP and urine input and output)(ii) I.V. Fuid not administered. (I.V. fluid administration is absolutely necessary in the first 48 hours of treating TEN)As regards, Dr. Balaram Prasad, Respondent No. 5, it may be noticed:(i) Most Doctors refrain from using steroids at the later stage of the diseasedue to the fear of Sepsis, yet he added more steroids in the form of quickacting "Prednisolone" at 40g three times a day.(ii) He stood as second fiddle to the treatment and failed to apply his own mind.(iii) No doctor has the right to use the drug beyond the maximum recommended dose.So far as the judgment of the Commission is concerned, it was clearly wrong in opining that there was no negligence on the part of the hospital or the doctors. We are, however, of the opinion, keeping in view the fact that Dr. Kaushik Nandy has done whatever was possible to be done and his line of treatment meets with the treatment protocol of one of the experts, viz. Prof. Jean Claude Roujeau although there may be otherwise difference of opinion, that he cannot be held to be guilty of negligence.