SC sets aside conviction of oncologist in 24-year-old case

NEW DELHI, Sept 15:
The Supreme Court has set aside a Bombay High Court judgement upholding the conviction of Mumbai-based oncologist P B Desai for not taking due care of a terminally-ill wife of an IAS officer nearly 24 years ago.
Desai was held guilty and sentenced to suffer simple imprisonment for a day till rising of the court and to pay Rs 50,000 compensation to the husband of the deceased or undergo three months jail term by a Mumbai trial judge in 2011 under section 338 (causing grievous hurt by act endangering life or personal safety of others) of the IPC.
The verdict was upheld by the Bombay High Court and it led to an appeal in the apex court.
“We have no option but to conclude that though the conduct of the appellant constituted not only professional misconduct for which adequate penalty has been meted out to him by the Medical Council and the negligence on his part also amounts to actionable wrong in tort, it does not transcend into criminal liability, and in no case makes him liable for offence under Section 338 of the IPC as the ingredients of that provision have not been satisfied.
“We, therefore, allow this appeal and set aside the impugned judgements of the courts below,” a bench of justices A K Patnaik and A K Sikri said.
The apex court said though Desai’s act of not performing the surgery himself and remaining absent from the operation theatre was an “act of negligence”, the omission was not of a kind which had given rise to “criminal liability”.
Desai was held guilty for not taking personal care of Leela Singhi by not performing Exploratory Laparotomy (surgery) himself upon her.
Padamchandra Singhi, husband of the patient, had said Desai had advised Exploratory Laparotomy procedure on his wife in December 1987.
A K Mukherjee, a junior to Desai and two other doctors had began the surgical procedure and on opening the abdomen, found plastering of intestines as well as profuse oozing of ascetic fluids.
Desai, who did not take part in the operation, saw the condition of the patient from a distance and advised juniors to close the abdomen again as the operation was not possible.
The patient’s condition deteriorated and after around three months, she was discharged and later died on February 26, 1989 at Jaipur.
The apex court said it was because of the deplorable condition of the patient, the surgery could not be completed as on the opening of the abdomen other complications were revealed.
“This would have happened in any case, irrespective whether abdomen was opened by Dr Mukherjee or by the appellant himself. On the contrary, the complainant’s own case is that Dr Mukherjee’s performance was not lacking; nay, it was of superlative quality,” it said.
The bench, allowing the appeal of Desai, said that his act of omission in not doing the surgery himself and remaining absent from the scene and neglecting the patient even when she was suffering the consequences of fistula, is an “act of negligence and is definitely blame worthy”.
“However, we are of the opinion that the omission is not of a kind which has given rise to criminal liability under the given circumstances,” the bench said. (PTI)

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