‘Dr Desai not attending to patient himself a negligent act’

The doctor-patient relationship had been established in the case of Desai and Leela contractually and legally,the court observed. While examining Desai’s challenge to an order of the trial court that held him guilty under Section 338 (causing grievous hurt by endangering life or personal safety of others) of the IPC,the apex court dealt with six issues: the doctor-patient relationship,duty of care that a doctor owes towards his patient,when this breach of duty would amount to negligence,consequence of negligence: civil and criminal,when criminal liability is attracted and whether Desai was criminally liable in this case.

“Due to the very nature of the medical profession,the degree of responsibility on the practitioner is higher than that of any other service provider,” the court said.

The court also observed that if a patient has suffered because of negligent act or omission of the doctor,it undoubtedly gives the right to the patient to sue the doctor for damages. This would be a civil liability of the doctor under the law tort and/or contract. “From the point of view of civil law,it may be appropriate to impose liability irrespective of moral blameworthiness,” the court said. “The question in the civil context is not about moral blame,even though there will be many cases where the civilly liable defendant is also morally culpable.”

Drawing a distinction between civil and criminal liability on a doctor’s part,however,the court said,“Negligent conduct does not entail an intention to cause harm,but only involves a deliberate act subjecting another to the risk of harm where the actor is aware of the existence of the risk and,nonetheless,proceeds in the face of the risk. This,however,is the classic definition of recklessness,which is conceptually different from negligence and which is widely accepted as being a basis for criminal liability.”

Determining Desai’s criminal liability,the court observed that the condition of Leela,who was suffering from metastatic breast cancer for 10 years,had to be kept in mind when Desai advised surgery.

“The dilemma of a doctor in such a scenario can be clearly visualized… whether to leave the patient as it is or to take a chance,may be a very slim chance,to save or at least to try to prolong the life of the patient. It was not an easy choice. Overcoming this difficult situation,the appellant (Desai) took the bold decision viz. that surgical operation was worth taking a risk,as even otherwise,the condition of the patient was deplorable,” the court noted.

The court said when Desai took a decisional shift from the doctors in USA who had said that Leela’s case was inoperable,he was required to give personal attention to the patient and he was,even otherwise,contractually bound to do so.

Leela’s husband,retired IAS officer P C Singhi had alleged criminal negligence by Desai who did not attend the exploratory laparotomy surgery being performed on Leela on December 9,1987 and asked his junior Dr A K Mukherjee to perform the surgery. After Mukherjee opened Leela’s abdomen,he found plastering of intestines and profuse oozing of ascitic fluids. He informed Desai,who was in another operation theatre,who then asked him to close the abdomen. “This would have happened in any case,irrespective of whether abdomen was opened by Dr Mukherjee or by the appellant (Desai),” the court said.

The court concluded,“The appellant’s omission in not rendering complete and undivided legally owed duty to patient and not performing the procedure himself has not made any difference. It was not the cause of the patient’s death,which was because of the chronic cancer condition. In such a scenario,it is enough to keep off the clutches on criminal law.”