P.B.Desai vs State Of Maharashtra & Anr

3. To give a glimpse of the episode at the outset, we may mention that one Smt. Leela Singhi (hereinafter to be referred as the ‘patient’), wife of Shri Padamchandra Singhi, the complainant, was suffering from Cancer for which she was under medical treatment since the year 1977. As her condition did not improve and rather deteriorated over a period of time, in 1987 she was taken to America and was treated in Sloan Kettering Memorial Hospital in New York. However, it did not yield any positive results. The doctors in that hospital declared her beyond surgical treatment and she was sent back to India on 29.11.1987. In India, she had been under the medical supervision of Dr. A.K. Mukherjee, for a long time, who started

4. Nod of a patient for Exploratory Laparotomy was duly taken who signed the consent form. Dr. Mukherjee, assisted by two other doctors, began the Exploratory Laparotomy procedure on 22.12.1987. On opening the abdomen, Dr. Mukherjee found plastering of intestines as well as profuse oozing of ascetic fluids. He immediately called the appellant who was performing other surgical procedure in another operation theatre. The appellant after seeing the condition of the patient from a distance, found that it was not possible to proceed with the operation. He advised Dr. A.K. Mukherjee to close the abdomen. Dr. Mukherjee, thus, closed the abdomen. The condition of the patient, thereafter, deteriorated due to the formation of fistula. The patient remained in the hospital for treatment of the fistula. After remaining in the hospital for about 3 months she was discharged and taken home by the complainant. But she never recovered and ultimately passed away on 26.2.1989 at Jaipur.

5. The complainant filed a complaint with the Maharashtra Medical Council against the appellant and also lodged criminal complaint against the appellant with the Director General of Police, Maharashtra. Main allegation against the appellant was that he did not take personal care and attention by preferring the operation himself. On the contrary he did not ever bother to even remain present there when Dr. A.K. Mukherjee started surgical procedure and opened the abdomen. Moreover, when Dr. Mukherjee, on opening of the abdomen, found that Cancer was at a very advanced stage and it would not be possible to proceed because there was fluid and intestines were plastered and he called the appellant for advice, even then the appellant did not examine the patient minutely. Instead, after seeing her from the entrance of the operating room, he advised Dr. Mukherjee to close the abdomen. So much so, even after the formation of the fistula and the pathetic condition of the patient, the appellant never bothered to examine or looked after her. It was alleged that the very advise of the appellant for -surgical operation, even when doctors at U.S.A. had opined to the contrary, was inappropriate. It was, thus alleged that the aforesaid acts of omission and commission amounted to professional misconduct as well as offence punishable under Section 338 of the I.P.C. Since, there was no overt act on the part of the appellant, as the surgical procedure was performed by Dr. A.K. Mukherjee, charge of abetment under Section 109 of I.P.C. was also leveled against the appellant. Dr. A.K. Mukherjee was also made accused in the said complaint. However, at a later stage, Dr. A.K. Mukherjee was dropped from the proceedings at the instance of the complainant.

12. Proceeding therefrom, Mr. Harish Salve, argued that the primary offender, as per the charge under Section 338 of the I.P.C, was Dr. A.K. Mukherjee, the doctor who actually performed the procedure and the appellant was charged as an abettor, using Section 109 of the I.P.C. However, Dr. A.K. Mukherjee was dropped from the prosecution at the instance of the complainant himself, on the ground that there was no evidence against him. On the contrary, the complainant in his testimony (P.W.1) gave glowing compliments to Dr. A.K. Mukherjee, praising his skills both as a doctor and a surgeon. In such circumstances, argued Mr. Harish Salve the question of abetment did not survive and, therefore, the case warranted closure even against the appellant as well, after dropping Dr. Mukherjee from the prosecution.

f) After the patient’s husband (PW.1) started writing complaints, Dr. Desai flatly denied that Mrs. Singhi was his patient. And Dr. Desai continued the denial even till the end of the trial despite the fact that the Maharashtra Medical Council had held him guilty after a full fledged enquiry under Section 22 of the Maharashtra Medical Council Act, 1965 and warned him, so also three witnesses from the hospital i.e. PW.2, PW.3 and PW.5 were examined by the prosecution to prove that Mrs. Leela Singhi was the patient of Dr. Desai. This entire behavior of Dr. Desai during the operation stage and post operation and -post complaint/ during trial was not commensurate with his professional eminence.

The Established Facts To find an answer to this question, let us revert to those facts which have been established by evidence. Respondent No.2 on the advice of Dr. A.K. Mukherjee admitted her in the unit of the appellant at Bombay Hospital on the basis of a note for admission given by Dr. A. Mukherjee. The operation namely “Exploratory Laprotomy Panhyxtroctomy” was advised by the appellant. At Bombay Hospital, a number of medical tests referred by the appellant including CT Scan, Blood Analysis, Blood transfusion report, -examination of urine, microscopic examination of centrifugalised deposits were done on the patient. As per the Bombay Hospital records, the patient - Smt. Leela Singhi was admitted as the indoor patient from 09.12.1987 to 4.5.1988 in Room No. 1005 under the appellant. Room No. 1005 was earmarked for the appellant and never allotted to any other patient without instructions of the appellant. The date of operation was fixed as per the convenience and on instructions of the appellant five days after his advice. The patient was examined by the appellant after preliminary investigations by Dr. A. K Mukherjee. A bill of Rs. 5000/- as the operation fee rendered by the operating surgeon Accused No 1 - the appellant, was raised by Bombay Hospital which was sent to Government of Rajasthan for payment. The documents also showed the appellant as operating surgeon. The constant reminders for the clearance of the bill were made to the Government of Rajasthan for releasing of the payment. The Respondent No. 2 had objected for charging of Rs. 5000/- in the name of the appellant for the operation which admittedly the appellant had never carried on his wife, the operation which according to the Bombay Hospital records was to be conducted by the appellant. Thereafter, Respondent No.2 made a complaint to the Board of

27. Thus, brushing aside the objection of the appellant that Smt. Leela Singhi was not his patient, on the facts of this case we proceed to find out whether conviction u/s 338 is sustainable or not.

The best form of treatment may differ when different choices are available. There is an implied contract between the doctor and patient where the patient is told, in effect, “Medicine is not an exact science. I shall use my experience and best judgment and you take the risk that I may be wrong. I guarantee nothing.”-

-may be motivated by thrill-seeking. These are clearly reckless.

(6) Whether the appellant criminally liable under Section 338 IPC, in the present case?

48. We have to keep in mind that by the impugned judgment, the appellant is convicted of an offence under Section 338 read with Section 109 of I.P.C. Therefore, the relevant question to be decided is as to whether, the -acts of omission and commission, imputed to the appellant, are sufficient to hold that all the ingredients of Section 338 of the I.P.C. stand satisfied.

57. At this juncture, an important observation is needed. When such a decisional shift is taken against the line of other doctors who had earlier treated the patient, the appellant was required to give personal attention to the patient during the operation. He was, even otherwise, contractually bound to do so.

61. Thus, it was the appellant’s “duty” to act contractually, professionally as well as morally and such an omission can be treated as an “act”. We again clarify that undoubtedly, within the realm of civil liability, the appellant has breached the well essence of “duty” to the patient. -

64. However, the important and relevant point is: Had the appellant undertaken the surgical procedure by himself, the result would have been different? Or, to put it otherwise, whether opening of abdomen by Dr. Mukherjee and not by the appellant who was supposed to do it, made any difference? In the given case, we do not find it to be so.

-complainant’s own case is that Dr. Mukherjee’s performance was not lacking; nay, it was of superlative quality.

67. The negligent conduct in the nature of omission of the appellant is not so gross as to entail criminal liability on the appellant under section 338 of the I.P.C. It is to be kept in mind that the crime as mentioned in section 338 I.P.C requires proof that the appellant caused the patient’s condition to the acute stage. Can he be said to have caused such a result, by his omission to act? We do not find it to be so.

69. For the aforesaid reasons, we have no option but to conclude that though the conduct of the appellant constituted not only professional misconduct for which adequate penalty has been meted out to him by the Medical Council, and the negligence on his part also amounts to actionable wrong in tort, it does not transcend into the criminal liability, and in no case makes him liable for offence under Section 338, IPC as the ingredients of that provision have not been satisfied. We, therefore, allow this appeal and set aside the impugned judgments of the courts below. No costs.