Tmes of India
20 July 2011
By,Swati Deshpande
Mumbai, India

23-Year-Old Medical Negligence Case
The Esplanade court, which convicted eminent cancer surgeon Dr P B Desai in a 23-year-old criminal case of negligence, held that the doctor’s defence in maintaining that patient was never his was “not probable” and held that his “senior surgeon” status meant that he was responsible for the patient. The magistrate had 10 days ago held Dr Desai guilty of causing grievous hurt by doing an act so rash or negligent as to endanger human life. The conviction had come in a case filed by ex-IAS officer P C Singhi following a surgery on his wife, Leela, a cancer patient, at Bombay Hospital where she was admitted under Dr Desai’s name.

Dr Desai’s case was that Leela Singhi, the 56-year-old wife of the then serving IAS officer from Rajasthan government, had been admitted under his name as a formality because junior doctors were not allowed to admit patients. His defence was that she was assistant surgeon Dr A K Mukherji’s patient. Besides, his consent before her admission to the hospital on December 9, 1987, was never taken, he had argued.

But the court, in its 80-page judgment, held that the patient was admitted under the care of Dr Desai. This finding, the court said was, backed by patient’s admission papers, case papers, the evidence of Singhi, the hospital’s general manager Dr G P Sharma who had given the admission slip to have her admitted as Dr Desai’s patient on Singhi’s request and also the evidence of medical director Dr Durgaprasad Vyas that the case papers bore Dr Deai’s name.

Dr Vyas had told Dr Desai’s advocate that “Dr Mukherji being assistant surgeon attached to senior honorary surgeon Dr Desai, exercised his privilege of getting Leela admitted in Dr Desai’s name as a formality”. He said she was the “sole responsibility of Dr Mukherji” and that “Dr Desai first came into the picture when his opinion was sought on Decemver 17 and he advised exploration”. But the court held that Dr Desai never denied that his name was on the case papers or that he was the senior surgeon at the hospital’s cancer unit.

The court said that once it was established that Leela was Dr Desai’s patient, his actions “made it clear” that “he did not exercise requisite competence in the case”. It is settled law that to infer negligence on part of a professional, particularly a doctor, simple lack of care or an error in judgment is no proof, but lack of professional skills or failure to competently exercise those skills is. The additional chief metropolitan magistrate M V Morale held that by “not examining the patient ever since her operation till her discharge it is clear that Dr Desai did not exercise competence”.

One of Dr Desai’s witnesses, Dr Hegade, said the decision to operate on Leela was “proper” but the magistrate observed that post-operation, Leela required about 25 dressings daily. Dr Hegade said “when a juior surgeon conducts a surgery, the senior surgeon is responsible for it”. The court held that Dr Hegade’s evidence did not support Dr Desai’s case as much as it did the prosecution’s. The court also relied on the evidence by cancer physician Dr Ernest Greenberg from New York via a videolink. The doctor had not advised surgery as Leela’s cancer was advanced. But he said the final decision was that of the examining surgeon’s.

Dr Desai had taken exception to the fact that the court had discharged Dr Mukherji as a co-accusedthough he had conducted the surgery and hence he ought to be adcquitted too. The court found no substance in his argument. For sentencing, though the offence attracted maximum two years’ jail, the court analysed the need to reform a convict and said its effort must be to “stab the beast in the criminal and not the criminal himself”. It held that compensation of Rs 50,000 and imprisonment till rising of the court were sufficient.