Bombay High Court

Dr.P.B.Desai vs The State Of Maharashtra on 15 October, 2012

Bench: K.U. Chandiwal

    Pvr                                 1/24                        revn166-12.sxw

           IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                    CRIMINAL APPELLATE JURISDICTION




                                                                           
                                                   
           CRIMINAL REVISION APPLICATION NO.166 OF 2012




                                                  
    Dr.P.B.Desai.                                  ...Applicant


          versus




                                         
    1.The State of Maharashtra
                          
    2.Mr.Padmachandra Singhi.                      ...Respondents
                         
                                        ---


    Mr.Shirish Gupte, Sr.Advocate @ Mr.Subodh Desai, for Applicant.
            


    Mrs.U.V.Kejariwal, APP for State.
         



    Mr.P.C.Singh, Complainant-Respondent no.2 in person present.





                                        ---

                                          CORAM : K.U.CHANDIWAL, J.

                                          DATED : 15th October, 2012





    JUDGMENT :

1. The original accused no.1 (Dr.Desai) impugns conviction

recorded by the learned Additional Chief Metropolitan Magistrate, 47 th

Pvr 2/24 revn166-12.sxw

Court, Esplanade, Mumbai on 5.7.2011 and confirmed in criminal appeal

no.432 of 2011 by the learned Additional Sessions Judge for an offence

under Section338 read with Section 109 of IPC, directing to suffer SI till

rising of the Court and to pay Rs.50,000/- as and by way of compensation,

in default to suffer SI for Three months.

FACTS :

2. P.W.1 Padamchandra Singhi as complainant, initiated

prosecution through Azad Maidan Police Station against accused no.1 and

Dr.A.K.Mukherjee. In 1987, the complainant, due to aggravated physical

condition of his wife Smt.Leela took her to New York for treatment of

cancer and on the basis of the biopsy of the cervix, the Doctors in New York

declared her case to be absolutely inoperable. The patient was brought to

Bombay, advice of Dr.A.K.Mukherjee was taken as she started bleeding

from vagina. Consequently, she was admitted at Bombay Hospital under

Doctor Mr.P.B.Desai (Accused no.1) wherein different kinds of tests

including C.T.Scan, blood analysis, Blood Transfusion report, examination

of urine, microscopic examination of centrifugalised deposits were carried.

The accused-applicant examined Smt.Leela and suggested removal of uterus

by an operation. He was confronted by the complainant with the reports of

New York Hospital as to 'was there is any need to operate the patient', the

accused no.1, renown oncologist in the field, stated that he knew his job

Pvr 3/24 revn166-12.sxw

well. The complainant and Smt.Leela desired that if operation is to be

carried on, it will be by accused no.1 himself. As per convenience and

instructions of accused no.1, 22nd December,1987 was the date fixed for

operation. On the date of operation, the complainant again requested

accused no.1 to give a second thought to operate his wife. The accused no.1

did not hear but enter the operation theatre at about 8.30 a.m. The accused

no.1 was carrying operation on one Mr.Oswal in adjoining room. During the

course of opening of abdomen by Dr.Mukherjee, Dr.Mukherjee and

Dr.Maniyar called accused no.1, he came upto the door of the operation

theatre. Inspite of remaining at a distance of 6 ft. from the patient, accused

no.1 did not examine her and simply asked Dr.Mukherjee to close the

abdomen as operation could not be performed. Dr.Mukherjee called the

complainant near the door of operation theatre and informed him that the

operation could not be performed because of profuse oozing of ascetic fluids

and plastering of intestines, so the abdomen which has been opened was to

be closed. The patient Smt.Leela was indoor patient from 09.12.1987 to

4.5.1988, in room no.1005 under Accused no.1. Room no.1005 was

earmarked for Dr.Desai, and never allotted to any other patient without

instructions of Dr.Desai.

3. A bill of Rs.5,000/- of accused no.1 was raised by Bombay

Hospital, it was sent to Government of Rajasthan and repeated reminders

Pvr 4/24 revn166-12.sxw

were sent for releasing the payment. The complainant had objected for

charging Rs.5,000/- as Dr.Desai did not operate his wife. After the

correspondence, Bombay Hospital sent a duplicate bill deleting Rs.5,000/-.

4. The factual details in the operation theatre could be received by

the complainant as his wife was given local anesthesia and she had heard

everything, watched everything in the operation theatre. She told him,

accused no.1 did not operate her. Dr.Mukherjee opened her abdomen, she

was conscious throughout the operation proceeding, Dr. Mukherjee got

upset and nervous when he opened her abdomen. The patient was mentally

upset as accused no.1 has not operated inspite of promise. Patient started

feeling pain in the operated part of the abdomen. There was lot of

discharge from fistula. Her physical condition was deteriorating. Whatever

she used to take, used to come out of the opening of the abdomen. The

nurses used to dress the wound after cleaning the discharge, minimum 4 to 5

times a day. Thereafter, the patient was required dressing for near about 20

to 25 times within 24 hours which continued till she was in hospital. The

accused no.1 did not come in the room no.1005 to see the patient Smt.Leela

after the operation till she was in the hospital. The patient succumbed at

Jaipur on 26.2.1989.

5. The complainant had lodged report against accused no.1 with

Pvr 5/24 revn166-12.sxw

Maharashtra Medical Council. An inquiry was held consisting of four

eminent doctors in the field. On 13.1.1998 Maharashtra Medical Council

gave verdict and held accused no.1 guilty, under Paragraph 15 of the

"Warning Notice" of the Code of Medical Ethics of the Maharashtra

Medical Council and Paragraph 3 under "Disciplinary Action" of the Code

of Medical Ethics of the Medical Council of India and he was warned under

Section 22(1)(a) of the Maharashtra Medical Council Act,1965.

SUBMISSIONS :

6. Shri.Gupte, the learned Senior Counsel, while criticising the

conviction had threadbare read evidence, documents and reported

judgments. He submits element of mens rea being an essential component

in a grievous hurt, is lacking. The act must be rash and negligent to

endanger human life. The power of revision under Section 397 or 401 of

Cr.P.C. deals equally like appellate power under Sections 388, 389, 390 of

Cr.P.C. Both the Courts have misread the evidence associated with lack of

appreciation.

7. Mr.Gupte says, the accused no.1 is globally known surgeon,

presented with gallantry awards and credentials. The accused no.1 has read

medical papers in different Universities in the world. He has been awarded

with Padmabhushan by the Government of India, and Dhanwantari award.

Pvr 6/24 revn166-12.sxw

He could never be termed to be rash and negligent in opining in exploratory

surgery, which was the only decision that could be taken in the matter of

bleeding to the patient.

8. According to Mr.Gupte, Smt.Leela was never a patient of

accused no.1. He was only called upon to give his opinion after 12 days of

admission. The operation was performed by Dr.Mukherjee and not by

accused no.1. There could not be negligence to look after the patient post

operational. Dr.Hegde, one of the defence witnesses who has said, in a

given situation exploratory surgery could be the advise and the act or

advice will not be a negligence and would not render a criminal act. As per

the Code of Conduct, Senior Doctor would not examine a patient unless

referred. The Medical Council simply warned Dr.Desai. He never charged

Rs.5,000/- for not operating the patient. In the operation record names of

team is disclosed. Dr.Maniyar, Dr.Rashmi were also the members in the

team. Dr.Rashmi has been examined as D.W.1.

9. He says, there could not be a case under Section 338 of IPC as

none of the ingredients in Section 320 of IPC are indicated. There could not

be gross lack of knowledge of the subject to accused no.1. Dr.Desai has

protested practice of admitting patients in his name at the hospital. The note

shows name of Dr.Desai without his knowledge.

Pvr 7/24 revn166-12.sxw

10. Mr.Gupte has, to emphasis his point, placed reliance to the

judgment in the matter of "Jacob Mathew Vs. State of Punjab & Anr. (2005

Cri.L.J. 3710)". He exhaustively read it and desired to apply parameters to

the present case. (II) Dr.Suresh Gupta Vs. Govt. of NCT of Delhi & Anr.

((2004)6 Supreme Court Cases 422); (III) Dr.Laxman Balkrishna Joshi Vs.

Dr.Trimbak Bapu Godbole & Anr. (AIR 1969 Supreme Court 128); (IV)

Malay Kumar Ganguly Vs. Sukumar Mukherjee & Ors. (AIR 2010 Supreme

Court 1162).

11. The learned APP Smt.Kejariwal invited my attention to

Pathalogy report dated 19.12.1987, 18.12.1987 and other identical clinical

examination upto 25.3.1988. She says in all medical papers Ex.P-22, name

of Dr.Desai appears to have referred for such test. If on 12.2.1988, a letter is

written by Dr.Desai to the Chairman of Bombay Hospital declining

Smt.Leela Singhi to be his patient, then how come his name reflects in the

examination papers maintained by the hospital. The amount of Rs.5,000/-

though was deleted in the subsequent bill, proportionate 1/3 rd fees payable to

the juniors remained the same in Exhibit 19 and Exhibit 20. The evidence

of P.W. 3 -Theatre Attendant is of importance as it refers the name of

Dr.Desai to be an operating surgeon. The patient had undergone pain and

suffering after opening of her abdomen. She was refrained to follow her

Pvr 8/24 revn166-12.sxw

ordinary pursuit for more than 30 days. The medical practitioner- a surgeon

owes a duty to his patient post operation. Defence raised by Dr.Desai are

unconceivable.

12. The complainant, 84 years old, retired IAS officer prosecuted

the cause for last more than 25 years vibrantly, arguing the matter and also

placed written submissions. He read evidence of Dr.Desai in the civil

proceedings being Suit no.1101 of 1989, (The said suit is decreed and

Dr.Desai/Bombay Hospital has preferred appeal.). He says, the available

evidence and his communication with Dr.Desai establish that his wife was

the patient of Dr.Desai, and Dr.Mukherjee was his junior. The duplicate bill

and original bill issued by the Bombay Hospital did not match as Rs.5,000/-

was deleted later. Even if there was admission of patient as a policy in the

name of Dr.Desai, but he had given preference to Dr.Desai alone as he was a

renown Oncologist and if his wife was to be operated as per advice of

Dr.Desai, it should have been done by him alone. He was at pains to explain

the negligence and intangible behaviour of Dr.Desai. He dent the stand of

Dr.Desai that his wife was not his patient by his verbal slugfest and the

documents. The gravamen of his submission is, his wife was admitted

under Dr.Desai, he opined for exploratory surgery against the advice of

expert in the field, even after such opinion, did not operate his wife inspite

of calling him, though operation date was fixed with his convenience, he

Pvr 9/24 revn166-12.sxw

even thereafter did not take post operative care by visiting the patient.

FINDINGS :

13. The factual details about Smt.Leela having examined at New

York in USA and she was examined by Dr.Desai, she was admitted as

patient of Dr.Desai is indicated in the set of documents. The date of

operation was fixed as per the convenience and on instructions of Dr.Desai

five days after his advice. He may dispute the same, however the

documentary evidence blasts his defence. There was no justification in such

narration. The evidence of P.W.3 Amar B. Singh, the Threatre Attendant in

hospital indicates that he made entries in the register on 22.12.1987. The

table where the register was kept was in between the two operation threatre

in corridor. He made entries in the Register on 22.12.1987 in respect of all

the operations. This was usual practice at Hospital. He has identified the

entries about the operation of Smt.Leela Singhi. He accepts, on

22.12.1987 one Mr.Oswal was operated by Dr.Desai in adjoining operation

threatre no.1, at the time of operation of Smt.Singhi. In the list of operation

to be performed by Dr.Desai there were two patients viz. Mr.Oswal and

Mrs.Singhi. The name of operation mentioned against Mrs.Singhi is

Exploratory Laprotomy Panhyxtroctomy.



    14           Basically, a surgeon of renown caliber should have desisted to




     Pvr                                  10/24                          revn166-12.sxw

fix two operations or multiple operations on a single day where the question

of vitality and life of the patient is paramount. Even if Dr.Desai is expert in

his field, the emergent assistance required to be extended by him, was

avoided as he though kept two operations side by side, did not enter in the

operation theatre where Smt.Leela Singhi was to be operated at his advice.

Dr.Mukharjee was not to operate the patient, as he was assisting Dr.Desai.

He has accepted in civil proceedings that he was at a distance of Six feet

from the patient, near the operation theatre, but did not venture to examine

her. He simply advised ig Dr.Mukherjee, nothing can be done, close the

abdomen. When Bombay Hospital has charged fees of Rs.5,000/- for

operating first class patient like Smt.Singhi, he was expected to discharge

his obligation. The bill was to be paid by the Government of Rajasthan as

complainant was an IAS officer serving with said Government. Two

reminders of bills were sent by Bombay Hospital. It was later a faint

exercise, due to protest of the complainant, that the bill of Rs.5,000/- was

recalled. However, the original and initial liability, thereby will not taken

away. There is ample material to show, billing pattern applied in the instant

case was prevalent in past and few years later.

15. P.W.5 Dr.Vyas is Medical Director of Bombay Hospital. He

accepted, as per the record it seems that the patient Mrs.Leela Singhi was

admitted in hospital under the care of Dr.P.B.Desai, she was discharged on

Pvr 11/24 revn166-12.sxw

5.4.1988. At Exhibit P-22, on 12.12.1987 Dr.Mukharjee made endorsement

for taking opinion of Dr.Desai after taking C.T.Scan report of Mrs.Singhi.

When the patient was examined by Dr.Desai in room no.1005, on 17th

December,1987 Dr.Mukharjee was not present. The case of Mrs.Singhi was

referred to Dr.Borges on 19.12.1987. Dr.Borges is the Cardiologist who

gave opinion for fitness for operation. Dr.Mukharjee has endorsed in the

medical case papers on 17.12.1987 that Dr.Desai has seen the case and

advised exploration.

16. The evidence of Dr.Earnest Greenberg Oscar Greenberg

illustrates Mrs.Singhi first consulted him on April 10, 1985 regarding the

treatment of her metastatic breast cancer. He answered to some of the

questions as under:-

"Ques: Do you agree that for the purposes of stopping abnormal bleeding per vagina, hysterectomy is generally an acceptable procedure ?

Ans. No, it all depends upon reason of the bleeding.

Bleeding may occur due to:

(1) some lesion in the vagina itself, (2) some lesion on the surface of the cervix, (3) due to some dysfunction in the uterus or from some lesion in the uterus, (4) due to some co-

agulation defect. The treatment has to be directed towards the cause of the bleeding. Before deciding the treatment the cause of bleeding has to be ascertained. The treatment

Pvr 12/24 revn166-12.sxw

depends upon the condition of the patient also.

Ques: In what cases of abnormal bleeding per vagina you would advise hysterectomy ?

Ans: It has to be decided by the gynecologist.

(The witness volunteers in this case the patient

Mrs.Singhi was therefore referred to gynecologist Dr.Alfred Brockunier) (The witness further volunteers that in the opinion of Dr.Alfred Brockunier surgery was not appropriate

looking to the condition of patient Mrs.Singhi. He further volunteers that he i.e. witness concurred with his opinion i.e.

with the opinion of Dr.Alfred Brockunier. The concurred

with the opinion of Dr.Brockunier based on his findings.)

Ques: Is it correct that the findings of Dr.Rockunier are

reflected in Exh. P-24/4 i. e. letter dt.23/11/87 ?

Ans: Yes, they are.

My attention is drawn to reports Exh.P-24/2 and Exh.P-24/3. These two reports mention only that metastatic carcinoma in cervix, primary site, breast plus involvement of

lymphatic channels. They do not say anything about involvement of any other system.

It is correct that Dr.Alfred Brockunier has mentioned in his letter dt.23/11/87 that there was some enlargement of the corpus with negative adnexa. It was the finding of Dr.Alfred Brockunier. The meaning of the word

Pvr 13/24 revn166-12.sxw

corpus is the body of the uterus whereas the opening of the uterus is known as cervix. Adnexa means ovaries and tubes.

They are in the pelvic space by the side of the uterus. Negative Adnexa means nothing abnormal was palpable in

ovaries and tubes. (The witness volunteers nothing was palpable it does not mean that anything abnormal was not

found in ovaries and tubes.)

"Ques.: Do you agree or ar you aware that surgical

approach/when feasible is an important treatment option when metastatic disease is apparently localised in an organ

which can be removed with standard surgery ?

Ans. No.

I don't have any literature to support my answer.

X-ray images means C.T.Scan. While answering I have stated, "while obvious metastasis can be detected by X-ray

images, "I mean C.T.Scan". When C.T.Scan did not reveal any abnormality it means no obvious metastasis was detected

or was there. Other imaging studies were not performed by me, Dr.Brockunier or in the hospital in New York showing whether there was obvious metastasis or not.

Ques: Do you agree that at no time you had any discussion with Mr.Singhi to the effect that hysterectomy or surgery for removal of uterus was to be performed. Ans. In view of the findings and in view of the fact that bleeding had stopped that surgery would not be a consideration. Because the tissue of her pelvis were in such

Pvr 14/24 revn166-12.sxw

condition that any more extensive surgery would be associated with a great risk of serious complications.

I cannot say whether this talk took place with Mr.Singhi before 20.11.87.

Ques: Is it correct that this was your opinion, (which

you conveyed to Mr.Singhi) before November 20th 1987. Ans. I do not recall when I conveyed my opinion to Mr.Singhi.

This opinion was formed when Dr.Brockunier reported his findings and the pathology report to me. Before

I formed my opinion Dr.Brockunier did not give me anything

in writing.

Ques: Before you formed your opinion did not note

down what Dr.Brockunier had told you.

Ans. I cannot tell you because I don't have full

printed report with me. It may be on Microfiche.

I had not yet received the written report when I

formed the opinion. (The witness volunteers that Dr.Brockunier reported him orally) I did form my opinion before 20.11.87. I have not recorded this opinion namely

that hysterectomy should not be performed or surgery should not be performed for the reasons given above, in Ex.P-24-1.

Ques: Was there any difficulty or any reason for not recording it in your opinion dt.20.11.87 ?

Ans: My feeling it was not necessary to be recorded therefore I did not give this opinion in writing before

Pvr 15/24 revn166-12.sxw

22.12.87."

Qus: Do you agree that in such cases surgery could be performed on the basis of opinion of the doctor after

considering the circumstances existing there ? Ans. It is basically treating Doctors responsibility to

assess all the circumstances to inform the patient and apply his or her decision accordingly.

Qus: doctor therefore if after taking into consideration that in the year 1977 Mrs.Singhi had breast

cancer which was treated and controlled and there was a

cancer free period and subsequently after lapse of many years metastatic disease was detected in cervix and nowhere else in such circumstances the treating doctor could suggest

the surgical approach to stop the continuation of the bleeding which continued inspite of hormonal treatment. Do you

agree ?

Ans. We are not talking about a hypothetical

question. We are talking about a patient who has already had metastatic disease in pleura although without any evidence of progression at that time, second she had undergone radiation

therapy to the pelvic organs which had resulted in considerable hardening and scarring of the pelvic tissues even as palpable from the outside. There was also a previous examination and consultation with gynecologist treating almost exclusively cancer patients whose opinion had been that surgery would have created a serious risk of complication for the patient and under those circumstances

Pvr 16/24 revn166-12.sxw

the surgeon who was presented again with the problem of bleeding would have been best advised to obtain some

consultation with additional opinion before proceeding with an operation associated with such risks.

Qus. Do you agree that the dose was so small that it

could no lead to hardening of tissues in the pelvis that you are referring to ?

Ans. I do not agree. I have seen such fibrosis

secondary to this type of dose occurring sometimes particularly with older radiation equipments used at that

period of time. Second, if the induration of the tissues that I

could actually feel from the outside and that Dr.Brockunier found on examination inside if that was not due to radiation then it was most certainly due to tumor spread in this part of

body. I further say that this was indeed found at surgery as predicted."

The sum and substance from the crucial part of the evidence is that the

decision of exploratory surgery, could not have been taken based on the

C.T.Scan which did not inform any abnormality. When there was already a

previous examination and consultation with Gynecologist, the surgery could

have created risk of complications for the patient, the surgeon should have

obtained best consultation or addition opinion before proceeding with an

operation associated with such risk. Even if one accepts that in the situation

there could not be judgmental error of Dr.Desai to operate, however, his

conduct all throughout calls for condemnation associated with negligence

Pvr 17/24 revn166-12.sxw

and shows total apathy to the patient. When he could advise operation and

patient accepted, date was fixed as per his convenience, he should have

performed operation. He had the gumption to disown the patient of his own

inspite of the fact that Rs.5000/- were charged by the hospital and

repeatedly demanded from the concerned -Government of Rajasthan. In

the bill Exhibit 22, proportionate fees i.e. 1/3rd to Dr.Desai's fees are charged

to the junior doctors and others. It also refers that operation was to be

performed by Dr.Desai, the consent was given by the complainant for

Dr.Desai.

17. Dr.Desai had occasion to verify the case papers, when he

opined for the exploratory surgery. If he had objection about naming the

patient under him, he could have at the inception disputed the same as on

17.12.1987, when he knew the situation. The principle of mens rea turns

to be insignificant in fact situation. The rules of evidence require the

Accused to explain of his conduct. With a view to combat the disastrous

consequences of decision to operate several patients, at a time Dr.Desai has

to face consequences. The patient treats him next to God believed his

advice, but expected him to do the same which was consented by him. A

patient cannot be expected to keep track of everything. Most of the time

papers are changed, or misplaced, patient has normally no access to it. It

was fortunate complainant could retain bill of Rs.5000/- of Dr.Desai, else

Pvr 18/24 revn166-12.sxw

hospital and Dr.Desai were disputing levying charges on this score.

18. In the case of "Jacob Mathew Vs. State of Punjab & Anr.", the

Supreme Court has elaborately dealt with the term "negligence". It is also

observed, the essential ingredient of mens rea cannot be excluded from

consideration when the charge in a criminal court consists of criminal

negligence. It is observed, a physician would not assure the patient of full

recovery in every case. A surgeon cannot and does not guarantee that the

result of surgery would invariably be beneficial, much less to the extent of

100% for the person operated on. The Supreme Court in paragraph 49 has

observed, "Negligence is the breach of a duty caused by omission to do

something which a reasonable man guided by those considerations which

ordinarily regulate the conduct of human affairs would do, or doing

something which a prudent and reasonable man would not do." To

prosecute a medical professional for negligence under criminal law, it must

be shown that the accused himself did something or failed to do something

which in the given facts and circumstances, no medical professional in his

ordinary senses and prudence would have done or failed to do. The hazard

taken by the accused doctor should be of such a nature that the injury which

resulted was most likely imminent.

19. The evaluation of evidence of complainant P.W.1 illustrates,

Pvr 19/24 revn166-12.sxw

Dr.Desai opined for operation but did not conduct surgery and had audacity

to charge bill. The opinion extended on exploratory surgery, was against

advise of experts from USA but he felt based on his expertise in the field for

operation, however, he should have given a second thought in the light of

the opinion of Dr.Earnest Greenberg. The judgment to carry operation

should have been effect of cogent physical examination, review of all

imaging studies tests, which unfortunately has not been done. The patient

provenly was admitted under the care of Dr.Desai. He owed responsibility

towards the patient having agreed to examine her, he is not permitted to

abandon the patient when he failed to operate her personally, and did not

take care for profused bleeding from the operational body part. There is no

question mark to his skill in the field, but the multiple operation scheduled

by him, not attending while operation and post operation, has taken toll of

the situation for which the patient suffered, required to undergo

hospitalisation pain, suffering for three months. The anguish faced by the

patient and her relation is unparallel. She was required, as per the hospital

record, bandage to the open part of the abdomen every hour or

intermittently.

20. It is pertinent, the expert body in the field of the renown

Doctors in the Medical Council of Maharashtra has, on examination of

available evidence held Dr.Desai guilty of professional misconduct. The

Pvr 20/24 revn166-12.sxw

reasons are as under:-

"1) The patient Mrs.Leela Singhi was admitted on 9 th

December,1987 by the Bombay Hospital Authorities in the

Unit of Dr.P.B.Desai on the basis of a note for admission given by Dr.A.K.Mukherjee. However, it has been brought out in arguments that Dr.P.B. Desai was not responsible for

the care and treatment of the patient as per the prevalent practice of Bombay Hospital which practice needs to be strongly condemned.

                   2)    The patient was examined by Dr.P.B.Desai on
                   17/12/1987
                              ig  after       preliminary      investigations           by
                   Dr.A.K.Mukherjee.        Dr.P.B.Desai    advised        exploratory

Laparotomy inspite of the opinion of cancer specialists from U.S.A. Respecting Dr.P.B.Desai's opinion, the patient agreed for surgical treatment and desired that Dr.P.B.Desai should

operate on her. Accordingly, the operation was fixed on 22 nd

December,1987 by Dr.A.K.Mukherjee in consultation with Dr.P.B.Desai, who would be available on the Hospital premises during operation. During surgery the case was

found to be inoperable and there were complications as result of which the patient suffered for a period of about 3 months. All this would have been avoided if surgical treatment had

not been performed.

3) The Council is of the opinion that a responsible Senior Surgeon is expected to enquire on his own about the progress of the operation when it is advised by him and is being carried out while he is on the premises. The Council therefore feels that Dr.P.B.Desai, instead of merely advising, ought to have voluntarily taken more interest and personally

Pvr 21/24 revn166-12.sxw

seen the situation faced by Dr.A.K.Mukherjee which he did not do.

4) The Council therefore, holds that Dr.P.B.Desai has violated by committing breach of paras Nos.1, 3, 12 of the

Code of Medical Ethics of the Maharashtra Medical Council and declaration No.9 and paras 12, 13, 14 of Medical

Council of India, New Delhi.

5) The Maharashtra Medical Council therefore holds Dr.P.B. Desai, guilty under Para 15 of the "Warning Notice"

of the Code of Medical Ethics of the Maharashtra Medical Council and Para 3 under "Disciplinary Action" of the Code

of Medical Ethics of the Medical Council of India and hence

Dr.P.B.Desai is warned under section 22(1)(a) of the Maharashtra Medical Council Act,1965."

Dr.Desai has been held guilty by Maharashtra Medical Council and it has

reached finality. It cannot be doubted, being based on evidence and

documents.

21. Amazingly the record of relevant period of operation threatre

from 13.10.1987 to 17.10.1988 was misplaced for which an inquiry was

conducted appointed by the Board of Hospital. Two subordinate staff of

Hospital will hardly implicate Dr.Desai with negligence, but nobody should

skip the record, method and procedure at said Hospital. It is unacceptable

that it was Dr.Mukharjee alone to perform operation being a cancer surgeon.

He was, admittedly a Junior of Dr.Desai. If it was so, there was no reason

Pvr 22/24 revn166-12.sxw

for Dr.Desai when they met five days prior to surgery to fix operation,

there was no need for him to ensure two operations simultaneously on the

same date i.e. 22.12.1987. The case papers referred to above does not call

to dispute that Smt.Leela was admitted in Bombay Hospital under Dr.Desai.

The diagonally and marauding opposite stands taken, by Dr.Desai are not

supported by the documents. The testimony of P.W.1 cannot be said to be

uncorroborated it has impetus of documentary evidence produced from

Bombay Hospital.

22. The judgment in the matter of "Jacob Mathew Vs. State of

Punjab & Anr." or "Dr.Suresh Gupta Vs. Govt. of NCT of Delhi & Anr."

cannot be applied with the same scale as the facts in both the matters are

distinct. It is well settled, "each case depends on its own facts and projects

different shades to assess." One cannot apply same colours of reported case

to the facts of the present case. The texture of the present case has

cumulative effect of Dr.Desai disowning the patient, opining for operation,

neglecting to operate and then neglecting to take post operational care.

Present case certainly conceive effects of Section 320 of IPC and 338

thereof.

23. Hon'ble Supreme Court in "Mahadev Prasad Kaushik Vs. State

of U.P. & Anr., (2009 ALL MR (Cri) 1864 (S.C.))" in paragraph 31 states:-

Pvr 23/24 revn166-12.sxw

"31. Though the term 'negligence' has not been defined in

the Code, it may be stated that negligence is the omission to

do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a

reasonable and prudent man would not do."

24. Dr.Suresh Gupta's case was for quashing the proceedings,

however, in the present case such exercise carried by Dr.Desai upto

Supreme Court in Special Leave to Appeal (Cri) no.959 of 1996 has been

negated by the Hon'ble Supreme Court. He was directed to face trial. He

knew, patient's condition was too advanced as he had access to her medical

papers, still opt for operation. Dr.Hegde, another expert examined as

defence accepts "It is correct that the surgeon will not propose "exploratory

Laprotomy", if the patients condition is too advanced or there is lot of fluid

in the abdomen.

25. The criminality lies in running the risk of decision of operating,

then perpetuated by recklessness or indifference as to the consequences.