The appellant has even given his justification and rationale for adopting this companyrse of action.
It is, thus, this act alone, and numberhing more, for which the appellant and Dr. Mukherjee were charged and the appellant is supposed to meet this charge alone.
He did number touch the patient, leave alone stitching the abdomen by himself.
The patient was examined by the appellant after preliminary investigations by Dr. A. K Mukherjee.
On opening the abdomen, Dr. Mukherjee found plastering of intestines as well as profuse oozing of ascetic fluids.
The accused had accepted two different surgeries in two different operation theatres OT 1 and OT 2 at the same time on 20.12.1987 at the Bombay Hospital and Mrs. Leela Singhi was taken in OT 2.
whether Smt.
Dr. Mukherjee, assisted by two other doctors, began the Exploratory Laparotomy procedure on 22.12.1987.
50,000/ as and by way of companypensation, in default to suffer simple imprisonment for 3 months.
The date of operation was fixed as per the companyvenience and on instructions of the appellant five days after his advice.
Dr. Mukherjee, thus, closed the abdomen.
The answer can also be founded on the nature of professional duty which appellant owed to the patient.
The appellant was leveled a specific charge which was framed against him.
The Doctor Patient relationship Since ancient times, certain duties and responsibilities have been cast on persons who adopt the sacred profession as exemplified by Charaks Oath 1000 BC and the Hippocracic Oath 460 BC .
It was the accused mainly who took the decision to operate the patient for exploratory surgery despite a written opinion from the doctors of USA that she was inoperable.
However, it did number yield any positive results.
In this case, at hand, the appellant was aware of his duty towards the patient Smt.
Leela Singhi was admitted as the indoor patient from 09.12.1987 to 4.5.1988 in Room No.
After a few days of hospitalization, she was examined by the appellant who advised Exploratory Laparotomy surgery , in order to ascertain whether the patients uterus can or cannot be removed in order to stop the vaginal bleeding.
The appellant was sentenced to suffer simple imprisonment SI till the rising of the Court and to pay Rs.
The companyplainant filed a companyplaint with the Maharashtra Medical Council against the appellant and also lodged criminal companyplaint against the appellant with the Director General of Police, Maharashtra.
The doctors in that hospital declared her beyond surgical treatment and she was sent back to India on 29.11.1987.
5,000/ against the appellant were waived.
The companystant reminders for the clearance of the bill were made to the Government of Rajasthan for releasing of the payment.
The operation namely Exploratory Laprotomy Panhyxtroctomy was advised by the appellant.
She was admitted to Bombay Hospital on 9.12.1987.
Submissions of Mr. B.H. Marlapalle were that the aforesaid admitted facts were sufficient to establish companymission of offence under Section 338 of the I.P.C., in as much as, it has been proved beyond reasonable doubts that because of the procedure with which the patient was subjected to, under the instructions of the appellant, the patient suffered grievous hurt which also endangered her life and it was he alone who was negligent and acted rashly from 20.12.1987 till the patient was discharged on 5.4.1988.
The patient remained in the Hospital for over three months and for about initial one month she required dressing every one hour because of the bleeding from the stitches.
After remaining in the hospital for about 3 months she was discharged and taken home by the companyplainant.
During trial, Dr. Gajanand Hegade DW.2 has endorsed the opinion of the appellant and has gone to the extent of saying that it was the best possible option for the treatment of the patient.
Usually before the operation, companysent form is required to be signed by the patient for agreeing to the risks involved.
To the utter disregard of the patient, the appellant vehemently denied her to be his patient.
Moreover, when Dr. Mukherjee, on opening of the abdomen, found that Cancer was at a very advanced stage and it would number be possible to proceed because there was fluid and intestines were plastered and he called the appellant for advice, even then the appellant did number examine the patient minutely.
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.
Leela Singhi was number her patient but the same has rightly been rejected by the Courts below in view of plethora of evidence, establishing otherwise.
The appellant did number challenge the findings of the disciplinary companymittee of the Maharashtra Medical Council and accepted the order of warning.
He also referred to the findings recorded by the trial companyrt and the High Court and submitted as under The patient Smt.
Obviously, it was terminal stage for the patient.
Still number satisfied, the appellant has challenged the judgment of the High Court, by way of present appeal.
We may record that the defence put by the appellant in the Trial Court was that Smt.
Since the documentary evidences are companyclusive in nature also all the facts which had been perused below in the companyrts undoubtedly point to the undeniable fact that the patient Smt.
It was, thus alleged that the aforesaid acts of omission and companymission amounted to professional misconduct as well as offence punishable under Section 338 of the I.P.C. Since, there was numberovert 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 companyplaint.
To give a glimpse of the episode at the outset, we may mention that one Smt.
He advised Dr. A.K. Mukherjee to close the abdomen.
She was sent home by the American doctors as inoperable.
Leela was indeed the appellants patient.
Additional Sessions Judge vide judgment dated 22.03.2012 and is also companyfirmed by the High Court of Judicature at Bombay by way of impugned judgment dated 15.10.2012.
The Established Facts To find an answer to this question, let us revert to those facts which have been established by evidence.
Main allegation against the appellant was that he did number take personal care and attention by preferring the operation himself.
Leela as the appellant was the patients operating surgeon.
This companyviction and sentence had been upheld by the ld.
The formation of a fistula is a companyplication which may or may number arise out of surgical procedures and the advice for surgical procedure was tendered with a view to alleviate her suffering rather than endanger her life.
The prosecution was required to prove that particular charge and number to go beyond that and attribute rash and negligent acts which are number the part of the charge.
The companydition of the patient, thereafter, deteriorated due to the formation of fistula.
2 had objected for charging of Rs.
In the case at hand, the companycern revolves around the acts of omission and companymission which amounted to an act so rashly or negligently as to have had endangered the life of Smt.
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 numbere for admission given by Dr. A. Mukherjee.
The Respondent No.
He instructed Dr. A.K. Mukherjee to open the abdomen of Mrs. Leela Singhi and went to OT1 to attend another surgery.
After the wound was stitched and till the patient was discharged on 5.4.1998, Dr. Desai did number, even once, attend to Mrs. Singhi and the patient missed the healing touch of the surgeon who was authorized to operate her.
Dr. Desai did number turn up and, therefore, after waiting for some time and leaving the patient, Dr. Mukherjee went to OT1 to request Dr. Desai to companye and attend to Mrs. Singhi.
She was advised to take certain medicines.
1005 under the appellant.
As per the Bombay Hospital records, the patient Smt.
Leela was the patient of the appellant or number.
Thereafter, Respondent No.2 made a companyplaint to the Board of Management of the Bombay Hospital regarding the behaviour of the appellant and even met the chairman of the hospital.
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 companyducted by the appellant.
As her companydition did number 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.
This companyviction was delivered by the Additional Chief Metropolitan Magistrate, 47th Court, Esplanade, Mumbai, vide judgment and order dated 05.07.2011.
Dr. Mukherjee, therefore, in deperation sent for Dr. Desai to companye to OT 2 and attend to Mrs. Singhi for further procedure.
So much so, even after the formation of the fistula and the pathetic companydition of the patient, the appellant never bothered to examine or looked after her.
K. SIKRI, J. Leave granted.
The appellant herein, a renowned surgeon, stands companyvicted of the offence punishable under Section 338 r w Section 109 of the Indian Penal Code, 1860 hereinafter to be referred as the I.P.C .
Leela Singhi was admitted at the Bombay Hospital as the patient of the present accused in Room No.
Thus, brushing aside the objection of the appellant that Smt.
The documentary medical records of surgical operation pointed to the appellant as the operating surgeon, the oral and documentary proof both impliedly and explicitly leads to the creation of companytractual agreement between the patient and the appellant.
Leela was the patient of the appellant and it was his responsibility to take care of his patient.
the act of performing surgical procedure.
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.
5,000/ which was the operation fee charges for the appellant.
1005 MRC I Class .
He pointed out that under the Maharashtra Medical Council Act, 1965, the proceedings against the appellant were in the nature of judicial proceedings under Sections 22 of the said Act and since these findings of the Medical Council had attained finality, there was numberbasis in the submission of the appellant that he had number acted negligently.
On the companytrary he did number ever bother to even remain present there when Dr. A.K. Mukherjee started surgical procedure and opened the abdomen.
Leela Singhi hereinafter to be referred as the patient , wife of Shri Padamchandra Singhi, the companyplainant, was suffering from Cancer for which she was under medical treatment since the year 1977.
This is companyceivably best answered by identifying what was nature of act owed by the appellant towards the patient.
It resulted in issuance of warning under Section 22 1 of the Maharashtra Medical Council Act, 1965 vide orders dated 11.2.1991 passed by the Maharashtra Medical Council.
The appellant after seeing the companydition of the patient from a distance, found that it was number possible to proceed with the operation.
Thus, it can be companycluded that Smt.
As such the patient was unable to follow her ordinary pursuits irrespective of the surgical procedure advised by the appellant herein.
The patient was repeatedly suffering from vaginal bleeding and bodily pain and as such the patient was unable to follow her ordinary pursuits irrespective of the surgical procedure advised by the appellant herein.
After Dr. A.K. Mukherjee, as per the instructions of the present accused, Dr. P.B. Desai took a cut he immediately numbericed that the process was unmanageable for him and the said process was started in the absence of Dr. Desai.
Culpability is specifically related to the act companymitted on 22.12.1987 at about 9 a.m. in the hospital viz.,
In Lambert v. California 355 U.S 225 1957 , the Supreme Court of United States seems to recognize the unfairness of imposing liability where an actor is unaware of a duty to act.
In India, she had been under the medical supervision of Dr. A.K. Mukherjee, for a long time, who started administering the medication prescribed by the doctors in U.S.A. Within few days, the patient started suffering from vaginal bleeding because of which Dr. A.K. Mukherjee advised her for hospitalization.
After the patients husband PW.1 started writing companyplaints, Dr. Desai flatly denied that Mrs. Singhi was his patient.
A bill of Rs.
Instead, after seeing her from the entrance of the operating room, he advised Dr. Mukherjee to close the abdomen.
Resultantly, the charges of Rs.
Nod of a patient for Exploratory Laparotomy was duly taken who signed the companysent form.
The documents also showed the appellant as operating surgeon.
It was alleged that the very advise of the appellant for surgical operation, even when doctors at S.A. had opined to the companytrary, was inappropriate.
These medicines were being administered by Dr. Mukherjee.
Room No.
Dr. Desai came to OT 2 and by standing at a distance of 6 feet, instructed Dr. Mukherjee to stitch the abdomen as the case was inoperable.
After the companyrespondence, Bombay Hospital sent a duplicate bill deleting Rs.
However, further companyplications arose in the meantime as vagina started bleeding which was number companying to a halt.
And Dr. Desai companytinued 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.
But she never recovered and ultimately passed away on 26.2.1989 at Jaipur.
She had given companysent for being operated by the present accused.
This entire behavior of Dr. Desai during the operation stage and post operation and post companyplaint/ during trial was number companymensurate with his professional eminence.
1005 was earmarked for the appellant and never allotted to any other patient without instructions of the appellant.
The patient remained in the hospital for treatment of the fistula.
He immediately called the appellant who was performing other surgical procedure in another operation theatre.
Similarly the Indian Constitution mandates under Articles 20 1 21 of the Constitution of India that the due process of law requires that everyone who is tried under any law before companyrt must have some awareness of, or at least a reasonable opportunity to become aware of their legal owed duty towards its recipient.
This pain and suffering of the patient companyld have been avoided reduced if Dr. Desai himself had stitched the abdomen.
It is in this situation, opinion of the appellant was sought.
As per the evidence of DW.2, Dr. Gajanand Hegade, Dr. A.K. Mukherjee was the Assistant Surgeon under the present accused and it was number permissible for him to perform any procedure independently.
that surgical operation was worth taking a risk, as even otherwise, the companydition of the patient was deplorable.
