Doctors, before giving a promise to a patient or to a fellow Colleague, please see the case which was dragged for 25 years .

 A Doctor was held guilty for breach of Professional Ethics (i.e. not attending a patient at the time of operation) and not for Medical Negligence . Take few minutes to read . It may help you too.. 

This is the unique case of 4-5 years back. in my opinion. The Division Bench of Hon’ble Bombay High Court in the case of Dr. Praffula B. Desai V/s. Mr. Padma chandra Singhi & ors ([Original Side) Appeal No.703/2011 arising out of Suit No.1101/1989) has given the Verdict which runs into 66 pages. 

You may see the judgment on Following Link. If the Link is not opening, then Please google for Bombay High Court Side.

http://bombayhighcourt.nic.in/generatenewauth.php?auth=cGF0aD0uL2RhdGEvanVkZ2VtZW50cy8yMDE0LyZmbmFtZT1PU0FQUDYyMzExLnBkZiZzbWZsYWc9TiZyanVkZGF0ZT0mdXBsb2FkZHQ9MTQvMTAvMjAxNCZzcGFzc3BocmFzZT0xMjAyMTgxNzUzNTQ=

Facts in short :

1.  It was alleged that deceased lady, who was diagnosed with cancer, was admitted in the Bombay Hospital in the year 1987 as an Indoor Patient in First Class (MRC) in Bombay Hospital and that she was put under the care and control of Appellant doctor, who  was the Head of oncology Dept.

2.  The Deceased was previously also taken to USA by her IAS Husband - Respondent no.1 for further treatment and the Doctors' Hospital in New York declared her case to be an inoperable case of Cancer and advised her to undergo Hormonal Therapy and when they returned to India, due to heavy vaginal bleeding, she was admitted to Bombay Hospital. 

 3. The Allegation in short was that there was an Implied Contract between the Doctor and the deceased patient and the Appellant inspite of receiving his fees, in breach of that contract, failed to remain present at the time of Exploratory Laparotmoy and he delegated his duty to Dr. Mukharjee.  The Surgery was also fixed on the date as per the convenience Appellant Doctor, who was to do it personally  and moreover Rajasthan Govt. agreed to pay fees of the appellant. Further it was alleged that there was negligence in conducting Exploratory Laparotmoy by both the Doctors.  and sued them for Rs.27 Lacks and odd amount, in the year 1989. Moreover when the Doctors in USA opined that the case of the deceased was inoperable, still the Appellant shoed non-application of mind by advising Exploratory Laparotmoy, without disclosing the risks involved therein. 

 4. The Doctors denied all the allegations. The appellant said she was never his patient and upon a request made by Dr. Mukharjee, he examined the deceased as a Consultant only for the purposes of giving an opinion and he opined to do an exploratory surgery. with a view to ascertain whether it was possible to remove the “mass” which was causing vaginal bleeding. But he denied of extensive discussion or the surgery was performed as per his instructions. On the contrary Dr. Mukharjee contended that he performed the surgery as told by the Appellant and after seeing the condition of the patient on Operation Table, he called Dr. Desai, bu Dr. Desai did not come up in OT. The bombay hospital denied the existence of any contract between the hospital and the Deceased.

5.  The Ld. Single Judge negated the contention of Negligence, however did not accept the contention of Dr. Desai that the deceased was not his patient. It was held that there was breach of contract and thus imposed Rs.15,60,000 + interest @ 16% + Rs.1 lakh Cost on the Appellant.

   The Appellant  filed an Appeal against the Order and the Division Bench gave the Verdict (partly)  in favour of the Doctor and observed :

1. There was no evidence lead by the Respondents to prove that the deceased was admitted as his patient nor there was any record to prove that the Appellant was informed about the admission of the deceased as patient. There was no evidence to show that the Appellant agreed to perform the surgery, but he only agreed to be around at the time of surgery if any help is required. Moreover the Appellant also never received any fees.

2.     However it was proved that Dr. Desai agreed that on 22/12/1987 he would be around if any help is required by Dr. Mukharjee and to that extent only there was a relation of Doctor and Patient. 

3.    The High Court observed that "only fault" which can be attributed to Doctor Desai was that when he was informed by Dr. Mukharjee about the abdominal condition of the patient, Dr. Desai without personally coming to OT, asked Dr. Mukharjee to close the abdomen.

4.    Regarding damages the Divison Bench rejected the order of damages imposed on Doctor as the basic alleged Contract was not proved. The husband of the deceased patient was also satisfied about the surgery performed by Dr. Mukharjee. Nor it was the case of the claimants that Exploratory surgery was the cause of death. Moreover merely Dr. Desai did not attend the patient personally also was not the even remotest ground of the death. The Court only allowed the cost of Rs.1 lakhs, which was already paid.

5.  Interestingly, Maharashtra Medical Council held Dr. Desai as guilty of Professional Misconduct for not attending the Patient. Dr. Desai also did not challenge the said finding.

   The Criminal Charges against the Doctor were Turned down by Hon. Supreme Court

Relief by Supreme Court in Criminal Case :

6.  The Criminal case was also filed against the Appellant and the Apex Court by reversing judgments of lower courts, released the Accused from the offense of Causing grievous hurt by act endangering life or personal safety of others U/Sec.338 of IPC, but Apex Court recorded a finding that the conduct of the Appellant (of not attending the operation) constitutes breach professional ethics.

7.       The Apex Court held that the opening of the abdomen of the deceased by Dr. A.K. Mukherjee and not by the Appellant did not make any difference.

8.        The Apex Court held that the death could have occurred irrespective of the fact whether the abdomen was opened by the fourth Respondent or by the Appellant himself.

9.      It further observed that the omission of the Appellant in not rendering complete duty to the patient and not performing the operation himself has made no difference and it is not the cause of the death of the deceased.

Medical Science or an Art, whatever one may call it, is incomplete.

Interesting Case indeed. The case emphasizes another factor  that the patient had actually faith in Dr. Desai.  The loss caused to near and dear ones of the deceased is beyond any monetary compensation. The void can never be filled. At the same time, the Doctors’ side also has to be looked into. 25 years of legal battle is not a joke.. No Prudent Doctor would ever act to the detriment of the patient. The question always boils down to the fact that the Medical Science or an Art, whatever one may call it, is incomplete.  A Simple paracetamol may have life threatening effects on the body and at the same time another patient of cancer can come out of it completely. There is no alternative for any Doctor to perform his/her duties as per his/her skill and knowledge. In absence of the same, he/she enters into the arena of Negligence.

Last but not the least, "सुख के सब साथी, दुःख में ना कोई।" has universal application.

Thanks & Regds

Adv. Rohit Erande

Pune. ©