National Consumer Disputes Redressal Commission, New Delhi (NCDRC): While addressing a medical negligence case, the Coram of Dr S.M. Kantikar (Presiding Member) and Binoy Kumar, Member, observed that, Negligence per se is not a separate cause of action from negligence suits. Negligence per se, however, assumes the duty because of public policy or law. “Negligence per se” is defined by the legal field as “negligence due to the violation of a public duty under a law that defines the failure of care required to constitute negligence. Negligence per se may also be declared when a person does or omits to do something which is so beyond reasonable behaviour standards that it is negligent on its face.”
An appeal was filed against the State Commission’s order wherein it had granted Rs 20 lakhs without interest which was much less than reasonable and just compensation.
The three grounds for the present appeal were:
(A) Enhancement of the compensation from Rs. 20,00,000/- to Rs. 50,00,000/-.
(B) The interest to be awarded on the amount of compensation either from the date of surgery (06.02.2006) or from filing of the complaint before the State Commission, New Delhi (2007)
(C) To Hold the doctor guilty and impose fine/penalty upon him.
Analysis, Law and Decision
In Commission’s opinion, the impugned order in both the appeals was unsustainable and in the present case, the final arguments were heard by two members –Judicial and Administrative but due to the retirement of the Administrative Member, probably to avoid a fresh hearing in the case, the Judicial Member thought it was advisable to pronounce the final order himself.
In the present case, the final arguments in the Complaint were heard by two Members and, therefore, only those two Members were competent to pronounce the order, and not by the Member sitting singly. This is the fundamental rule, which cannot be sacrificed at the altar of administrative convenience.
Coram set aside the order challenged as the same was illegal.
After the remand, the matter was heard, and the State Commission awarded Rs. 20 lakh compensation with Rs.1 lakh as cost of litigation to the Complainants.
Commission, noted that,
further note that, the DMC has made strong observations on the patient management in G.M. Modi Hospital as it was in very lackadaisical manner. The hospital had inadequate manpower, lack of coordination, no proper record keeping of in-ward and outward (dispatch) of specimen of histo-path. The operative findings and the follow-up advice were not recorded properly. Thus, the hospital ignored all treatment protocols and the surgeon blandly violated the standard norms. Though, in this case the operated specimen was handed over to the patient’s relative for HPE examination but Dr. Panigrahi did not bother to see/know about the report. However, the patient relatives denied about receipt of any specimen. As per the NABH standard operating procedure (SOP), it is the responsibility of operating surgeon to send the surgical specimen for HPE. It is unfortunate that subsequently the patient developed metastasis in liver and other parts of body and she lost the chance of early cancer therapy. In our considered view it was ‘negligence per se’ of the hospital and the treating surgeon Dr.Panigrahi. The DMC further observed that only CBD exploration was done to claim money from CGHS though admittedly laparoscopic small bowel resection was not done but it was mentioned in discharge summery. The DMC removed the name of Dr. A.K. Panigrahi for 12 weeks from the State Medical register.
Coram expressed that, in negligence cases, one must prove that there was a duty, that duty was breached, and the breach of that duty caused damages.
Compensation in Medical Negligence Cases
It was noted by the Commission that, in the present case, the Surgeon failed in his duty of care, and it was not a reasonable standard of practice, thus he was negligent.
The State Commission ignored the medical negligence of the Surgeon; and for the qualitative change awarded Rs 20 lakh as compensation.
Hence, in Commission’s opinion, the medical negligence was attributed to the doctor and hospital, and the Complainant deserved the compensation. Therefore, the compensation was modified, that Rs 20 lakhs have to be paid just and fair, and therefore the view taken by the State Commission for the need of qualitative change in the functioning of the hospital was endorsed and the hospital shall pay Rs 5 lakhs more to the Complainant.
Since it has been 1 ½ decade since the incident occurred, the complainant deserves an interest on the total quantum of the award.
The impugned Order was modified to the extent that the treating Surgeon was liable for medical negligence; as well, the hospital was vicariously liable. The hospital needed qualitative change and systemic improvement also. Therefore, on the basis of the foregoing discussion, OP 1 and 2 shall pay total compensation of Rs 25 lakhs with interest of 6% pa and cost of litigation shall remain at Rs 1 lakh only. [Vishnu Priya Giri v. G.M. Modi Hospital Research Centre for Medical Sciences, 2022 SCC OnLine NCDRC 58, decided on 13-5-2022]
Advocates before the Commission:
For the Appellant: Mr Jalaj Agarwal, Advocate Mr Alok Chaudhary, Advocate with Appellant in person
For the Respondent: Mr Sanjeev Kumar Dubey, Sr. Advocate with Mr Rajmangal Kumar, Advocate for R-1
Ms Mary Mitzy, Advocate for R-2