Death by negligence

SC ruling a benchmark for doctors

by V. Eshwar Anand In THE TRIBUNE 02/09/2009

THE Supreme Court judgement in the Anuradha Saha medical negligence case is a landmark in the annals of medical jurisprudence. The apex court not only adjudicated on how to determine criminal negligence on the part of a doctor or a group of doctors in the event of a patient’s death but also imposed greater responsibility on them on the universal treatment protocol. It has also reinforced a patient’s right to know the line of treatment being followed by doctors, including the risks involved in the treatment.

Significantly, the Bench consisting of Justice S.B. Sinha and Justice Deepak Verma has upheld the acquittal of three doctors from the charge of criminal negligence causing the death of Anuradha Saha 11 years ago. While  imposing a penalty of Rs 5 lakh on Kolkata’s Advanced Medical Research Institute (AMRI) and Rs 1 lakh on Dr Sukumar Mukherjee that treated Anuradha, it accepted the right of her husband, Kunal Saha, to seek compensation by way of tortuous liability for his loss and mental trauma.

The compensation to be paid by AMRI and the doctors individually will be decided by the National Consumer Disputes Redressal Commission, where Kunal has claimed Rs 77.7 crore as damages. The judgement is being viewed by many as the judiciary’s acknowledgement of the deficiency in the medical service given to Anuradha. The apex court has upheld the Calcutta High Court ruling acquitting three doctors — Dr Abani Roy Chowdhury, Dr Sukumar Mukherjee and Dr Baidyanath Halder — on the ground that they had no “mens rea (intention) of being rash and negligent”.

After a prolonged trial, Kolkata’s Chief Metropolitan Magistrate let off Dr Chowdhury, and the High Court the other two doctors in 2004. Kunal Saha then approached the Supreme Court. Anuradha was diagnosed with a serious disease called Toxic Epidermal Necrolysis (TEN). Also called Lyell’s Syndrome, in this disease, the patient gets high fever and occasionally suffers from somnolence and lassitude. Owing to the extensive area of eroded skin, the patient loses huge body fluid with consequent disturbances in the electrolyte and fluid balance. She died in 1998 at the age of 36 following complications from a steroid overdose.

Anuradha, a child psychologist, and Kunal, a doctor-researcher on HIV/AIDS, were settled in the US. They visited Kolkata in April 1998 on a vacation. After she suddenly developed fever and skin rash, Dr Mukherjee examined her and advised her rest without prescribing medicine. After a week, when the skin rash appeared more aggressively, Dr Mukherjee prescribed Depomedrol injection (80 mg) twice daily for three days. Yet, her condition deteriorated.

She was admitted to the AMRI hospital on May 11 under Dr Mukherjee’s supervision. Dr Halder found that she was suffering from erithima plus blisters. Dr Chowdhury also examined her. After her condition worsened, she was shifted to Mumbai’s Beach Candy Hospital in a chartered plane. She died on May 28.

Medical opinion has been sharply divided over the administration of steroids, particularly for those suffering from TEN, discovered as far back as 1956. In fact, there are pro- and anti-steroid lobbies, implying that medical science has a grey area in this respect. The treatment protocol for TEN has undergone change throughout the world.

Though doctors used to administer steroid for TEN patients earlier, researchers have later warned against its use after conducting tests of TEN patients with and without the administration of steroids. They found that those treated with steroids did not respond properly thereto. Though researchers have found that the use of steroids was more detrimental than beneficial to TEN patients, some doctors still use steroids. In Anuradha’s case, experts held that Depomedrol of 80 mg twice daily should not have been prescribed under clinical conditions.

Though some use “quick acting” steroids for a short period, at the very early stage of the disease, they quickly stop the same to check side-effects. Her condition is said to have deteriorated because, in addition to Depomedrol (prescribed by Dr Mukherjee), she was given a new steroid, Pednisolone (40 mg), thrice daily (prescribed by Dr Chowdhury and Dr Halder).

The specialists at Beach Candy Hospital were aghast at this patent steroid overdose on Anuradha by Kolkata’s doctors. According to them, a patient could be given not more than 40 mg Pednisolone, once daily, to be reduced to 5 mg within the next five-six days.

More to the point, as the apex court has observed, the Kolkata doctors did not follow the universal treatment protocol for Anuradha. For a TEN patient, supportive therapy is imperative in character, but no such advice was rendered. Despite well laid down procedures in reputed medical journals, they failed to provide primary emergency care, symptomatic therapy, fluid replacement and antibacterial and nutritional support to Anuradha.

Worse, the fact that AMRI did not maintain records of Anuradha’s vital parameters like temperature, pulse rate, blood pressure, etc, was itself an act of “gross negligence”. Still, the apex court rejected Kunal’s petition to book the doctors for criminal negligence under Section 304-A of the Indian Penal Code. Charging a doctor under this section, according to the Bench, is very serious as it will affect his professional status and reputation and the burden of proof will be more onerous.

It held that a doctor could not be held negligent only because the treatment resulted in the patient’s death. He cannot be held liable for “mischance, misadventure or for an error of judgement” in making a choice where two options are available. Even a doctor’s mistake in diagnosis cannot be necessarily construed as a “negligent diagnosis”, according to the Bench.

Even under the law of tort, a doctor can be held liable in respect of an erroneous diagnosis only if his error is “so palpably wrong” as to prove by itself that it was callously arrived at. For imputing criminal liability on a doctor, a very high degree of such negligence is required to be proved, the Bench ruled.

Interestingly, though experts had briefed the Bench and given their evidence about TEN and its treatment protocol, it ruled that the court was not strictly bound by the specialist advice as such evidence was only advisory in nature under Section 45 of the Evidence Act. The court must derive its own conclusion upon considering the expert opinion, it observed.

The judgement is a watershed in medical jurisprudence because it not only put the onus on the doctors for the patients’ treatment but also laid down ground rules on the basis of its judicial pronouncements over the years. The doctors must observe the current practices regarding infrastructure, sterility and hygiene. No prescription should be given to a patient without actual examination.

A doctor should not merely go by the patient’s version about his/her symptoms but also make his/her own analysis, including tests and investigations wherever necessary. Doctors should not experiment unless necessary and even then only after obtaining the patient’s written consent.

The judgement reinforces a patient’s right to know. The Bench has made it clear that doctors must tell patients about the risks involved in any line of treatment they are following. By and large, patients are ignorant about the adverse effects of a medicine. If some reaction is anticipated, the patient must be informed. This was not done in Anuradha’s case.

The Bench’s warning that whether or not a doctor kept a patient informed about the pros and cons of a line of treatment will be considered in every case of medical negligence hereafter is expected to serve public interest immensely and fill up the vacuum in this vital discipline.

http://www.tribuneindia.com/2009/20090902/edit.htm#4

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DELHI HIGH COURT JUDGEMENT ON JUDGES ASSET / CJI AND JUDGES COME UNDER RIGHT TO INFORMATION (RTI)

FINAL CONCLUSIONS

84. The above discussion and conclusions in this judgment are summarized as follows:

Re Point Nos. 1 & 2 Whether the CJI is a public authority and whether the CPIO, of the Supreme Court of India, is different from the office of the CJI; and if so, whether the Act covers the office of the CJI;

Answer: The CJI is a public authority under the Right to Information Act and the CJI holds the information pertaining to asset declarations in his capacity as Chief Justice; that office is a “public authority” under the Act and is covered by its provisions.

Re Point No. 3: Whether asset declaration by Supreme Court judges, pursuant to the 1997 Resolution are “information”, under the Right to Information Act, 2005;

Answer: It is held that the second part of the respondent’s application, relating to declaration of assets by the Supreme Court judges, is “information” within the meaning of the expression, under Section 2 (f) of the Act. The point is answered accordingly; the information pertaining to declarations given, to the CJI and the contents of such declaration are “information” and subject to the provisions of the Right to Information Act.

Re Point No. 4: If such asset declarations are “information” does the CJI hold them in a “fiduciary” capacity, and are they therefore, exempt from disclosure under the Act

Answer: The petitioners’ argument about the CJI holding asset declarations in a fiduciary capacity, (which would be breached if it is directed to be disclosed, in the manner sought by the applicant) is insubstantial. The CJI does not hold such declarations in a fiduciary capacity or relationship.

Re Point No. 5: Whether such information is exempt from disclosure by reason of Section 8(1) (j) of the Act.

Answer: It is held that the contents of asset declarations, pursuant to the 1997 resolution – and the 1999 Conference resolution- are entitled to be treated as personal information, and may be accessed in accordance with the procedure prescribed under Section 8(1)(j); they are not otherwise subject to disclosure. As far as the information sought by the applicant in this case is concerned, (i.e. whether the declarations were made pursuant to the 1997 resolution) the procedure under Section 8(1)(j) is inapplicable.

Re Point No. (6) Whether the lack of clarity about the details of asset declaration and about their details, as well as lack of security renders asset declarations and their disclosure, unworkable.

Answer: These are not insurmountable obstacles; the CJI, if he deems it appropriate, may in consultation with the Supreme Court judges, evolve uniform standards, devising the nature of information, relevant formats, and if required, the periodicity of the declarations to be made. The forms evolved, as well as the procedures followed in the United States, – including the redaction norms- under the Ethics in Government Act, 1978, reports of the US Judicial Conference, as well as the Judicial Disclosure Responsibility Act, 2007, which amends the Ethics in Government Act of 1978 to: (1) restrict disclosure of personal information about family members of judges whose revelation might endanger them; and (2) extend the authority of the Judicial Conference to redact certain personal information of judges from financial disclosure reports may be considered.

85. In this case, the appellate authority had recorded inter alia, that:

“A perusal of the application dated 10.11.2007 discloses that the appellant had sought for information relating, to the declaration of assets by the Hon’ble Judges of the Supreme Court as well as the Chief Justice of the States.”

In view of the findings recorded above, the first petitioner CPIO shall release the information sought by the respondent applicant,- about the declaration of assets, (and not the contents of the declarations, as that was not sought for) made by judges of the Supreme Court, within four weeks. The writ petition is disposed of in terms of this direction; in the circumstances, the parties shall bear their own cost.

Copies of this judgment be given Dasti to counsel for the parties.

S. RAVINDRA BHAT

(JUDGE)

SEPTEMBER 2, 2009

FOR COMPLETE JUDGEMENT OF THE DELHI HIGH COURT

https://indialawyers.wordpress.com/delhi-high-court-judgement-on-judjes-asset/

“RESTATEMENT OF VALUES OF JUDICIAL LIFE (CODE OF CONDUCT) ADOPTED IN THE CHIEF JUSTICES’ CONFERENCE IN DECEMBER 1999

The Conference of Chief Justices of all High Courts was held on 3rd and 4th December, 1999 in the Supreme Court premises. During the said Conference, the Chief Justices unanimously resolved to adopt the “Restatement of Values of Judicial Life” (Code of Conduct).

WHEREAS by a Resolution passed in the Chief Justices’ Conference held at New Delhi on September 18-19, 1992, it was resolved that it is desirable to restate the pre-existing and universally accepted norms, guidelines and conventions reflecting the high values of judicial life to be followed by Judges during their tenure of office;

AND WHEREAS the Chief Justice of India was further requested by that Resolution to constitute a Committee for preparing the draft restatement to be circulated to the Chief Justices of the High Courts for discussion with their colleagues, which was duly circulated on 21.11.1993;

AND WHEREAS suggestions have been received from the Chief Justices of the High Courts after discussion with their colleagues;

AND WHEREAS a Committee has been reconstituted by the Chief Justice of India on April 7, 1997, to finalize the ‘Restatement of Values of Judicial Life’ after taking note of the draft Restatement of Values of Judicial Life prepared by a Committee appointed pursuant to the Resolution passed in the Chief Justices’ Conference 1992 and placed before the Chief Justices’ Conference in 1993;

AND WHEREAS such a Committee constituted by the Chief Justice of India has prepared a draft restatement after taking into consideration the views received from various High Courts to the draft which was circulated to them;

NOW THEREFORE, on a consideration of the views of the High Courts on the draft, the restatement of the pre-existing and universally accepted norms, guidelines and conventions called the ‘RESTATEMENT OF VALUES OF JUDICIAL LIFE’ to serve as a guide to be observed by Judges, essential for an independent, strong and respected judiciary, indispensable in the impartial administration of justice, as redrafted, has been considered in the Full Court Meeting of the Supreme Court of India on May 7, 1997 and has been ADOPTED for due observance.

RESTATEMENT OF VALUES OF JUDICIAL LIFE:

(1) Justice must not merely be done but it must also be seen to be done. The behaviour and conduct of members of the higher judiciary must reaffirm the people’s faith in the impartiality of the judiciary. Accordingly, any act of a Judge of the Supreme Court or a High Court, whether in official or personal capacity, which erodes the credibility of this perception has to be avoided.

(2) A Judge should not contest the election to any office of a Club, society or other association; further he shall not hold such elective office except in a society or association connected with the law.

(3) Close association with individual members of the Bar, particularly those who practice in the same court, shall be eschewed.

(4) A Judge should not permit any member of his immediate family, such as spouse, son, daughter, son-in-law or daughter-in-law or any other close relative, if a member of the Bar, to appear before him or even be associated in any manner with a cause to be dealt with by him.

(5) No member of his family, who is a member of the Bar, shall be permitted to use the residence in which the Judge actually resides or other facilities for professional work.

(6) A Judge should practice a degree of aloofness consistent with the dignity of his office.

(7) A Judge shall not hear and decide a matter in which a member of his family, a close relation or a friend is concerned.

(8) A Judge shall not enter into public debate or express his views in public on political matters or on matters that are pending or are likely to arise for judicial determination.

(9) A Judge is expected to let his judgments speak for themselves; he shall not give interview to the media.

(10) A Judge shall not accept gifts or hospitality except from his family, close relations and friends.

(11) A Judge shall not hear and decide a matter in which a company in which he holds shares is concerned unless he has disclosed his interest and no objection to his hearing and deciding the matter is raised.

(12) A Judge shall not speculate in shares, stocks or the like.

(13) A Judge should not engage directly or indirectly in trade or business, either by himself or in association with any other person. (Publication of a legal treatise or any activity in the nature of a hobby shall not be construed as trade or business).

(14) A Judge should not ask for, accept contributions or otherwise actively associate himself with the raising of any fund for any purpose.

(15) A Judge should not seek any financial benefit in the form of a perquisite or privilege attached to his office unless it is clearly available. Any doubt in this behalf must be got resolved and clarified though the Chief Justice.

(16) Every Judge must at all times be conscious that he is under the public gaze and there should be no act or omission by him which is unbecoming of the high office he occupies and the public esteem in which that office is held.

These are only the “Restatement of the Values of Judicial Life” and are not meant to be exhaustive but only illustrative of what is expected of a Judge.

Provisions of the Act

1997 Resolution on Judges Assets

“RESOLUTION

The following two Resolutions have been ADOPTED in the Full Court Meeting of the Supreme Court of India on May 7, 1997:

RESOLVED that an in-house procedure should be devised by the Hon’ble Chief Justice of India to take suitable remedial action against Judges who by their acts of omission or commission do not follow the universally accepted values of judicial life including those indicated in the “Restatement of Values of Judicial Life.”

RESOLVED FURTHER THAT every Judge should make a declaration of all his/her assets in the form of real estate or investments (held by him/her in his/her own name or in the name of his/her spouse or any person dependent on him/her) within a reasonable time of assuming office and in the case of sitting Judges within a reasonable time of adoption of this Resolution and thereafter whenever any acquisition of a substantial nature is made, it shall be disclosed within a reasonable time. The declaration so made should be to the Chief Justice of the Court. The Chief Justice should make a similar declaration for the purpose of the record. The declaration made by the Judges or the Chief Justice, as the case may be, shall be confidential.”