Case Analysis

Dr. Kunal Saha v. Dr. Sukumar Mukherjee & Ors

Decided on 21 October, 2011

NCDRC, New Delhi

Bench:

1. HON'BLE MR. JUSTICE R.C. JAIN

2. HONBLE MR. S.K. NAIK

1. Introduction

A petitioner, a doctor himself, claimed a total compensation of more than Rs. 77 crores.
Later he also filed another complaint no. 179 of 2000 before National Consumer Dispute
Redressal Commission (NCDRC) against Breach Candy Hospital, Mumbai, its doctors
and functionaries claiming a further compensation of Rs.25.30 crore (though the said
complaint was later on withdrawn), thereby made claim of compensation exceeding
Rs.102 crores. This was perhaps the highest compensation ever claimed by anybody for
medical negligence before any consumer court in India established under the provisions
of Consumer Protection Act, 1986.1 These facts made Dr.Kunal Saha vs. Dr.Sukumar
Mukherjee & Others, O. P. No. 240 of 1999, NCDRC, New Delhi, date of judgment: 21st
October 2011, case an extra ordinary in the field of medical negligence in Indian
Context.2

2. Facts
1
J Indian Acad Forensic Med. October- December 2011, Vol. 33, No. 4

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http://medind.nic.in/jal/t11/i4/jalt11i4p286.pdf
Smt. Anuradha Saha, aged about 36 years, wife of the complainant contracted a disease
called "TEN" (Toxic Epidermal Necrolysis) when she along with the complainant, i.e.,
her husband was in India for a holiday during April-May 1998. "TEN" is a rare and
deadly disease. A patient with TEN loses epidermis in sheet-like fashion leaving
extensive areas or denuded dermis that must be treated like a larze, superficial, partial-
thickness burn wound. It is a rare disease which accounts for nearly 1% of drug reactions
that require hospitalization, and has a mortality rate of 25 to 70 per cent. Soon her skin
started to peel off and she is diagnosed with a life-threatening condition caused by a drug
reaction. She was airlifted to Breach Candy hospital in Mumbai where she died. Her
husband lodged a criminal case accusing the doctors of negligence. She and the
complainant although of Indian origin were settled in the United States of America.
Anuradha showed certain symptoms of rashes over her body and received treatment at
the hands of Opposite Parties and some other doctors as outdoor patient upto 10-5-1998
and she was admitted in Advanced Medicare and Research Institute Limited, Calcutta
(AMRI), on 11-5-1998, where she was treated by the Opposite Parties and other doctors
uptil 16-5-1998. As there was no improvement in her condition, she was shifted to Breach
Candy Hospital, Mumbai, on 17-5-1998 by an air ambulance. She was treated in Breach
Candy Hospital from 17-5-1998 evening till she breathed her last on 28-5-1998.3

Complaint was filed by the complainant against the opposite parties claiming a total
compensation of 77,07,45,000. Complainant also filed criminal complaint against some
of the doctors and the hospital under section 304A IPC.

A three-member Bench of NCDRC dismissed the complaint by an order dated 1-6-2006.

Aggrieved by the dismissal of his complaint, the complainant filed Civil Appeal in the
Hon'ble Supreme Court. Since the Criminal Appeal and the Civil Appeal filed by the
complainant in the present complaint raised the same questions of fact and law, the
Hon'ble Supreme Court heard all the appeals together and decided the same by means of
a detailed judgment dated 7-8-2009, dismissed the Criminal Appeal but allowed the Civil
Appeal filed by the complainant and set aside the order dated 1-6-2006 passed by

3
http://lawyersupdate.co.in/LU/2/685.asp

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NCDRC dismissing the complaint and remanded the matter for the limited purpose of
determining the adequate compensation.4

5. Issues which are in challenges

Whether the prescription of 'Depomedrol' 80 mg. twice a day for 3 days by Dr.
Mukherjee was overdose and, thereafter, further prescription of the same
treatment for 2 more days was justified?
Whether OPs 2 and 3 (Dr. Baidyanath Halder & Dr. A.R.Chowdhury) committed
apparent deficiency in service by continuing steroid, namely, 'Prednisolone' 40
mg. thrice a day without administering I.V. Fluids?

Whether Opposite Parties 5 & 6 (Dr. Balram Prasad and Dr. Kaushik Nandy) can
In any case, be held liable for any alleged lapse on their part?

Whether AMRI Hospital failed to give proper treatment by not monitoring the
vital parameters of the deceased?

Provisions

Section 304 A IPC

304A. Causing death by negligence.Whoever causes the death of any person by doing
any rash or negligent act not amounting to culpable homicide, shall be punished with
imprisonment of either description for a term which may extend to two years, or with
fine, or with both.

Precedents

Arun Kumar Agarwal Vs. National Insurance Company

Rajesh & Ors. Vs. Rajvir Singh and Ors.

4
Ibid

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6. Arguments

Petitioner:

Dr. Mukherjee (OP1) gave overdose of ''Depomedrol' 80 mg. twice a day for 3 days. He
further directed on 11.5.1998 to continue the same medicine for 2 days followed by 40
mg. of the same medicine twice daily for 2 more days. This being an overdose of the
steroid, it has affected the immunity of the deceased as steroid is not the treatment for
TEN. Therefore, Dr. Mukherjee is liable for deficiency in service.

Dr. Baidyanath Halder (OP2) continued the steroid despite the deceased being diagnosed
as TEN which adversely affected her immunity.

Secondly, Dr. Halder (OP2) and Dr. Abani Roy Chowdhury (OP3) failed to direct
simultaneous giving of I.V. Fluids as a supportive therapy when steroids were
administered to the deceased. It is, therefore, contended that Opposite Parties 2 & 3 are
responsible for the said deficiency.

For AMRI Hospital (OP 4) it is contended that the hospital failed to monitor the vitals of
the deceased during the treatment; failed to administer I.V. Fluids; that the hospital was
not having any burn center and that Mrs. Anuradha was not shifted to ICU during the
treatment.

Against OP5, Dr. Balram Prasad, allegation for deficiency is made on the ground that he
was in-charge of the patient and he ought to have suggested that steroid cannot be
administered to such patients and in any case, he ought to have taken care that I.V. Fluids
are given to the deceased as a supportive therapy.

Against OP-6, Dr. Kaushik Nandy, it is contended that the bandage which was applied by
him was not proper. He ought not to have used the cotton as the skin of the deceased at
the relevant time had peeled off. It is stated that Dr. Kaushik Nandy suggested giving of
I.V. Fluids to the deceased on 16.5.1998. However, there is nothing on record to show

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that I.V. Fluids were given to the deceased on 16.5.1998. Admittedly, she was shifted to
Breach Candy Hospital, Bombay, on 17.5.1998.

Respondent:

In short, the submissions of the learned counsel for the OPs are-

It was difficult for Dr. Mukherjee to diagnose whether the deceased was suffering from
TEN;

It is also contended that by no standard it can be said that the dose of 'Depomedrol' 80
mg. twice daily for 3 days is in any way excessive;

With regard to administration of I.V. Fluids, it is pointed out that intake of the patient was
more than sufficient and, therefore, there was no necessity of giving I.V. Fluids;

It is pointed out that the complainant has wrongly and mischievously joined Dr. Prasad
and Dr. Kaushik Nandy (OPs 5 & 6) and has intentionally omitted to join Dr. Ghoshal,
who was the first person to diagnose that the deceased was suffering from TEN. It is also
contended that Dr. Ghoshal has prescribed the same dose of medicine as prescribed by
Dr. Mukherjee.

7. Judgements

On a consideration of the entirety of the facts and circumstances, evidence and material
brought on record, the court held that overall compensation on account of pecuniary and
non- pecuniary damages amounted to ` 1,72,87,500 in the present case.

Ratio Decidendi

The following ratio was given by the court for its decision. Multiplier method provided
under the Motor Vehicles Act for calculating the compensation is the only proper and
scientific method for determination of compensation even in the cases where death of the
patient has been occasioned due to medical negligence/deficiency in service in the
treatment of the patient, as there is no difference in legal theory between a patient dying

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through medical negligence and the victim dying in industrial or motor accident. The
complainants foreign residence and the income of the deceased patient in a foreign
country are relevant factors but the compensation awarded by Indian forum cannot
reasonably be expected to be at par with those which are ordinarily granted by foreign
courts in such cases. The theoretical opinion / assessment made by a Foreign Expert as to
the future income of a person and situation prevalent in that country cannot form a sound
basis for determination of future income of such person and the Commission has to work
out the income of the deceased having regard to her last income and future prospects in
terms of the criteria laid down by the Supreme Court. The argument of the respondents
does not appear wholly untenable if we go strictly by the rule of admissibility of the
evidence in accordance with the provisions of the Indian Evidence Act. However, the
procedure provided for deciding the complaints under the Consumer Protection Act,
1986, does not enjoin upon a consumer fora like the present Commission to insist upon
the strict proof of the documents in accordance with the Evidence Act. In any case no
contrary material has been brought on record to assail the authenticity of this certificate.
The opposite parties contended that complainant has miserably failed to establish either
the education / professional qualification of the deceased or that she was drawing any
regular income and if so what was her actual income which she was generating from her
work of child counselling, assuming that she was engaged in such an activity. The court
said that we must reject these submissions as too technical and as an attempt to thwart
even the legitimate claim of the complainant particularly when nothing contrary to the
above record as regards her qualification from Columbia University, graduation degree
and post-graduation degree, income certificate have been brought on record. In any case,
the complainant has claimed much less than what is reflected in the said statement and
we have no reason to disbelieve the complainant in this behalf.15

The statement of income would show that Anuradha's gross salary was $1060.72 per
week and after deductions of federal tax, social security tax, her net pay was
$814.03 viz. around $3000 per month and $36000 per year. We have, therefore, no
hesitation to hold that the income of the deceased was $30,000 per annum before her

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http://www.lawyerservices.in/Dr-Kunal-Saha-Versus-Dr-Sukumar-Mukherjee-and-Others-2011-10-21

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death. Going by the judgment of Sarla Verma v. Delhi Transport Corporation, (2009) 6
SCC 121, we must add 50% to this income for her future prospects. That will bring her
average salary income to $45000 per annum. Having regard to the age of
Anuradha i.e. 36 years and keeping in view the multiplier laid down in the table in the
case of Sarla Varma , we must apply the multiplier of 15 in the present case. After
application of the said multiplier, her total income would come to $6,75,000. Having
come to the conclusion that the total anticipated income of Anuradha would have been
around $6,75,000, the next question is as to how much amount the deceased would have
spent on herself and how much she would have contributed to her family. Bearing in
mind the cost and standard of living in a country like USA and the income of the
complainant, in our view the deceased would have spent at least half of the said income
for her own upkeep and maintenance. Meaning thereby that she would at best have
contributed a sum not exceeding $3,37,500 to her family/complainant. By applying the
average exchange rate of ` 45 against a U.S. dollar, the net amount would come to `
1,51,87,500.

The findings given and observations made by the Supreme Court in its judgment dated 7-
8-2009 are absolutely binding on this Commission not only as ratio decidendi but also
as obiter dicta.

Critical Analysis

The verdict of the Apex court in this case is a landmark judgement in the history of
medical negligence in India. It had a major impact on the medical industry in India. The
amount of compensation claimed by the complainant and that awarded by the court was
the highest till then in a case of medical negligence.

The court made it clear that the enormous was not awarded was only for this case alone
but to send out a message to the whole medical fraternity. The court hoped that the
decision would have a long term deterrent effect and act as a reminder. The case went to
various courts before landing up at the Supreme Court. It is one rare case of a consumer
triumphing over the system.

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But there are various points on which this case can be criticized. This case took fifteen
long years to finally reach the point. One of the accused doctors, Abani Roy died before
the judgement. Another doctor is himself bed-ridden. Not many people would have the
determination shown by the complainant to fight for justice for so long, against so many
setbacks. One reason why he could fight was because he himself was a doctor and was in
a better position to understand what was happening than an ordinary person would be.

The second point on which the case can be criticized is the amount. The amount may
prima facie sound to be enormous and therefore a big deterrent, but further research in the
matter shows that as she was a US citizen, the amount was calculated in US dollars and
then converted to Indian Rupees at the value of Rs. 55 for one dollar. Had she been living
in India, the amount would not have been so high.

Also the complainant had to bear huge expenses during this litigation period. He is
reported to have spent around 6-8 crore fighting the case.6 The opportunity cost for him
was also huge as had to spend a lot of months in India, facing the risk of losing his job.
The cost and setbacks that he had to face fighting the case were enough to have
discouraged anybody.

Next, the deterrent affect does not seem to have worked. The accused doctors remained
largely unrepentant. Renowned doctors like Dr. Sukumar Mukerjee were just happy that
the SC ordered him to pay only one fourth of what the NCDRC had originally asked him
to pay. Plus, the bad name didnt affect their business as such and they continue to be
busy and reputed doctors.

Kunal Sahas struggle was not so much for the compensation but for the after effect that it
would have. He wanted to change the prevailing system in India where patients are
treated like guinea pigs. The compensation awarded in cases like these is usually one to
two lakhs, which doesnt act rich and famous doctors much. Sukumar Mukerjee still has a
good reputation among patients and was even invited to be an advisor to West Bengals
health ministry. The AMRI hospital was also given back its license after a short period.
Even if such a compensation is awarded, the question is will an ordinary man who

6
The Telegraph

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doesnt possess the means and knowledge of Kunal Saha, be able to fight a case for so
long to secure justice.

11. References

Websites:

http://medind.nic.in/jal/t11/i4/jalt11i4p286.pdf
http://lawyersupdate.co.in/LU/2/685.asp

http://judis.nic.in/supremecourt/imgs1.aspx?filename=40897

http://www.oiirj.org/oiirj/sept-oct2013/41.pdf

Journals:

SCConline
Westlaw

Books:

Mahendra K Bajpai, Law of criminal liability and medical negligence

Tapas Kumar Koley, Medical negligence and the law in India : Duties,
responsibilities, rights

John Healy, Medical negligence: Common law perspectives

Malcolm Michelle, Medical negligence

Michael Jones, Medical negligence

K.D. Gaur, Law of Crimes

Legislations:

Indian Penal Code

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