Madras High Court
Case BriefsHigh Courts

Madras High Court: Abdul Quddhose, J. permitted the termination of pregnancy of 27+ week of a minor child victim of offence under Protection of Children from Sexual Offences Act, 2012 (‘POCSO Act’) on the recommendations of well qualified doctors, as the victim was observed to not be so mentally strong to be able to withstand the pregnancy and later take care of the child even financially.

The instant case has been filed by the desperate father of a victim girl seeking medical termination of his minor daughter’s pregnancy. The rape victim girl X was impregnated by the accused who has been charged with the offence under sections 5(j)(ii) r/w 6 of POCSO Act.

A team of doctors were nominated vide order dated 14-07-2022 who medically examined the rape victim girl and submitted a feasibility report stating that that the victim girl X is about 28 weeks + 3 days pregnant.

Dr. S. Amutha, DDVL, Joint Director (MTP), Directorate of Family Welfare, Chennai and Dr.Vijaya Murali, Deputy Director (Inspection), Directorate of Family Welfare in open Court and they expressed that it is feasible to terminate the pregnancy of the petitioner’s daughter. The rape victim is mentally weak and not in a position to deliver a child at such a young age.

Dr. Arumai Kannu, HOD of Obstetrics and Gynecologist, Government Thiruvannamalai Medical College Hospital reiterated that it is feasible to terminate the pregnancy of the victim girl even though the gestational period is 28 weeks + 3 days.

Placing reliance on Murugan Nayakkar v. Union of India, 2017 SCC Online SC 1092, it was noted that the Supreme Court allowed termination of pregnancy in the case of 13-year-old child and in Sarmishtha Chakraborty v. Union of India, (2018) 13 SCC 339, termination of pregnancy was permitted even when the gestational age was 26 weeks, in view of the recommendations of the medical board.

The Court observed that while exercising powers under Article 226, this Court has got wider powers than what is prescribed under section 3(2) of the Medical Termination of Pregnancy Act, 1971, which permits the registered medical practitioner to terminate the pregnancy only when the length of pregnancy does not exceed a maximum period of twenty weeks. In the case on hand, the victim girl is 28 weeks + 3 days pregnant. However, considering the fact that the medical report recommends termination of her pregnancy and after giving due consideration to the fact that the victim girl is small statured and is only 13 years old, this Court exercising powers under Article 226 of the Constitution of India has got the powers to take judicial notice of those facts and can permit termination of victim’s pregnancy.

It was also observed that the petitioner is an agricultural laborer and surviving on hand to mouth existence. If the minor victim girl is allowed to deliver a child, not only the victim, but also her parents will suffer. The petitioner has also stated that he came to know about her minor daughter’s pregnancy only after coming to know that she did not get her menses for a long time.

The Court directed respondent 1 “to nominate Team of specialised Doctors on 18-07-2022 who shall terminate the pregnancy of the petitioner’s minor daughter on the very same date. However, after terminating the victim’s pregnancy, the first respondent shall preserve the foetus for carrying out the medical test for the purpose of criminal case pending against the accused for the offence under section 5(j)(ii) r/w 6 of POCSO Act.”

The Court further directed the Child Welfare Committee, Thiruvanamalai District to render all possible assistance both to the victim girl and her parents during the period of their stay in the Hospital.

[K Vijayakumar v. State of Tamil Nadu, 2022 SCC OnLine Mad 3724, decided on 15-07-2022]


Advocates who appeared in this case :

P Sevli, Advocate, for the Petitioner;

B Vijay, Advocate, for the Respondent.


*Arunima Bose, Editorial Assistant has reported this brief.

National Consumer Disputes Redressal Commission
Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission (NCDRC): After forceps delivery, a woman lost her control over passing urine and stool due to the negligence of a doctor, the Coram of R.K. Agrawal (President) and Dr S.M. Kantikar (Member) upheld the decision of State Commission with respect to compensation of Rs 8 lakhs.

The complainant (referred to as the patient) during pregnancy was under Antenatal care of Dr Vartika Mishra (OP). It was alleged that the OP conducted her forceps delivery, which resulted in 4th degree tear in the perineum (area between the vaginal canal and anus), further, the OP stitched the skin only, without muscle repairs, hence the patient lost her control over passing the urine and stool.

Thereafter, the complainant consulted another doctor who diagnosed ‘poor tone’ and ‘very poor anal squeeze’. Later the patient consulted various doctors but did not get full recovery in fact the patient was deprived of marital happiness for 2 years and lost her chance for normal delivery in future.

On being aggrieved, the Consumer complaint was filed before the State Commission and claimed Rs 35 lakhs as compensation.

State Commission partly allowed the complaint and directed the OP to pay a sum of Rs 8,00,000.

Being aggrieved with the above, an instant first appeal was filed.

Analysis and Decision

Commission held that there was negligence during outlet forceps delivery.

In addition to the above, there was a failure of duty of care during post-delivery period and medical record of the OP including Dr Abha Singh failed to convince the Commission about proper post-partum care.

“…the patient was complaining repeatedly about pain in the suture site but both the doctors have simply prescribed medicines, but ignored or not carefully examined the suture site for induration or infection, surprisingly advised to use ‘coconut oil with kapoor’ for about 6 months.”

Coram noted that the patient was a young woman and in primi gravida (first pregnancy). She, after delivery, for her sufferings ran from pillar to post to various hospitals in Raipur and Mumbai.

While concluding the matter, the Commission held that, the patient developed 4th-degree perineal tear after forceps delivery, which squarely attributed to the failure of duty of care, thus, medical negligence. Also, she did not get post-partum care as per accepted reasonable standards.

Therefore, State Commission’s order was affirmed. [ Dr Vartika Mishra v. Rachana Agrawal, FA No. 948 of 2015, decided on 25-2-2022]


Advocates before the Court:

Appeared at the time of arguments through Video Conferencing

For the Appellant : Mr. Vaibhav Agnihotri, Advocate Mr. Dhruv Chawla, Advocate

For the Respondents : Mr. Mohammad Sajid, Advocate

Case BriefsSupreme Court

Supreme Court: The bench of Dr. DY Chandrachud and Surya Kant, JJ has directed the State of Madhya Pradesh to allot a post graduate seat in Obstetrics and Gynecology at GMC, Bhopal to a lady doctor after noticing that she was entitled to incentive marks as per a State policy.

The appellant, a mother of a 5-year-old, has been working as a Medical Officer with the State of Madhya Pradesh on a regular basis for over 11 years. Out of the 11 years of service, she has served for 6 years in District Betul which is a notified tribal district and has served in a Community Health Centre at Katangi in the District of Balaghat for the remaining period.

It is important to note that the State of Madhya Pradesh has a policy of 30% reservation for In-Service doctors, employed with the State as also granting them the incentive marks at the rate of 10 % marks per year upto a maximum of 30% marks. However, for getting the same, as per the applicable procedure the Chief Medical Health Officer (CMHO) of the concerned District has to forward a No Objection Certificate (NOC) in the requisite format to the Directorate of Health Services of Madhya Pradesh (DHS) which in turn forwards it to the Department of Medical Education, Madhya Pradesh (DME). After the receipt of NOC by the DME, any Medical Officer employed with the State is categorised as an ‘In-Service Doctor’ and made eligible for the benefit of 30% reservation as also the 30% incentive marks.

The Madhya Pradesh High Court had dismissed the Writ Petition of the Petitioner on the ground that the clock cannot be set back as allotment for 2nd Round of counselling were over and the Petitioner could not procure and produce the NOC in time for suiting her eligibility and entitlement as an In-Service candidate, which disentitled her from any benefits. It was, however, argued before the Supreme Court that the High Court proceeded on a grossly and factually erroneous ground that the Petitioner never registered for the Counselling, when the said fact was never disputed by the State and the Petitioner herself had filed the document proving her online Registration with the State as per the prescribed procedure available on the official portal of the DME, MP.

The Supreme Court held that as an in-service candidate, the appellant was entitled to the award of incentive marks in accordance with the applicable rules and would, hence, be also entitled to the allotment of the vacant seat which was set apart in the interim order dated 11.04.2022, wherein one seat was directed to be kept vacant in the MS Obstetrics and Gynecology in GMC, Bhopal.

The said observation came after noticing that the issue at hand only pertained to whether there was compliance with procedural requirements. The appellant secured 317 marks in the NEET–PG entrance examination and considering that in-service candidates are entitled to the allocation of certain preference marks, the eligibility of the appellant as an in-service candidate was not disputed.

The Court, hence, directed the State of Madhya Pradesh to process the application of the appellant as an in-service candidate and award her incentive marks in accordance with law. On that basis, the appellant be allotted the seat kept vacant for her.

[Rajni Shende v. State of Madhya Pradesh, 2022 SCC OnLine SC 504, decided on 18.04.2022]


For Petitioner(s): Siddharth R Gupta, Adv, Abhikalp Pratap Singh, AOR, Shivam Baghel, Adv., Sunita Gupta, Adv., Pranjal Agarwal, Adv.

For Respondent(s): Saurabh Mishra, AAG and Mrinal Elker Mazumdar, Adv.

National Consumer Disputes Redressal Commission
Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission (NCDRC): Expressing that, the consensus between the dentists and patients is essential to standardize treatment plans and methods, Coram of Justice R.K. Agrawal (President) and Dr S.M. Kantikar (Member) addressed a case of dental negligence and remarked that,

“The teeth are only part of the face and it cannot be simply concluded that the whole face will become more beautiful once the teeth become neat.”

Not everyone can be born with a perfectly aligned smile. If you just changed your smile and nothing else, you would find a dramatic transformation in your personality, grace, confidence, appearance and social presence. When one or more teeth overlap, it can impact the smile and self-esteem.

Background


Revision petition was filed under Section 21(b) of the Consumer Protection Act, 1986 against the impugned order passed by the Andhra Pradesh Consumer Disputes Redressal Commission, Hyderabad.

What was the core issue?


There was an allegation of dental negligence, wherein the dentists at the OP Hospital unnecessarily performed the Root Canal Treatment (RCT) of 4 teeth and provided metal ceramic crowns causing disfigurement of the face of the complainant.

Present revision was filed by the OP, since the State Commission had directed the OP Hospital to pay Rs 5 lakhs with interest at the rate of 9% p.a. as compensation and Rs 10,000 towards the cost of litigation.

Analysis and Decision


Coram found that the OP was liable for deficiency in services and unfair practices on three counts:

Firstly, there was no grip/retention capacity of crowns in upper teeth, therefore more chances of felling of the crowns during talking, brushing etc. which is certainly an embarrassment.

Secondly, it was unfair on the part of the Opposite Party that the crowns are not metal free ceramic as promised and billed by the Opposite Party but they are metal ceramic

Thirdly, the Complainant was not informed about the implications of RCT as to the teeth would be made non-vital.

The consensus between dentists and patients is essential to standardize treatment plans and methods. In dental treatment, patients often ask orthodontists if they will look more beautiful and have doubts about the ultimate aesthetic effects. Also there is need to calibrate the perception between dentists and patients about the classification of aesthetics into unpleasant, acceptable, and pleasant; otherwise there may be some conflicting views on expectations and treatment. The teeth are only part of the face and it cannot be simply concluded that the whole face will become more beautiful once the teeth become neat.

In view of the above discussion, OP was held liable for medical negligence and deficiency in services since complainant suffered facial disfigurement after dental treatment. [Sravani Dental Hospital v. Anitha Tangellamudi, Revision Petition No. 2736 of 2012, decided on 8-3-2022]

Case BriefsHigh Courts

Allahabad High Court: While expressing that medical and legal fields are more a service than a profession especially the stream of oncology which deals with life and death, Krishan Pahal, J., held that “Corruption is a termite in every system.”

High Court also observed that, the offence of Corruption is against the society and Court has to balance the fundamental rights of the accused to the legitimate concerns of the society at large vis-a-vis the investigating agency.

On the basis of a complaint by Anmol Sachan, PI/CBI/ACB/Lucknow against Dr Sunita Gupta and her husband Dr Rajeev Gupta, the present case was registered under Section 109 of the Penal Code, 1860 and Sections 13(2) read with 13(1)(e) of the P.C. Act, 1988.

What was alleged in the complaint?

It was alleged that Dr Sunita was in possession of disproportionate assets to her known sources of income to the tune of Rs 1,80,96,585.33 which she cannot satisfactorily account for. The husband of doctor Sunita also abetted the possession of assets disproportionate to known sources of income by Dr Sunita Gupta.

CBI team had found and seized the currency notes amounting to Rs 1.59 crore from official residence of Dr Sunita Gupta.

The applicant or any other person (Doctors/Hospital Owners) summoned/examined during the investigation could not produce any valid documentary evidence in support of their statement or explanation offered by applicant that the total amount of Rs 1.59 crore seized from the official residence of Dr Sunita Gupta on 12/07/2016 was actually earned by applicant by indulging in private practice, after office hours.

Analysis, Law and Decision

Bench stated that applicant’s counsel failed to accord any tenable explanation for the recovered amount and further argued that the applicant was not authorized to take private practice as he was employed in a government institution.

Supreme Court’s decision in Sushila Aggarwal v. State (NCT of Delhi), (2020) 5 SCC 1 was cited by this Court.

Medical practitioner administer an oath at the time of convocation as provided by the Indian Medical Association which is an extension of Hippocratic oath taken the world over. The oath is not merely a formality. It has to be observed and followed in letter and spirit. It is on these lines that the apex medical education regulator, National Medical Commission has suggested that the Hippocratic oath be replaced by ‘CHARAK SHAPATH’ during the convocation ceremony for graduates in medical services.

High Court expressed that,

Corruption is a termite in every system. Once it enters the system, it goes on increasing.

Elaborating further on corruption, the Bench added that it is the root cause of all the problems, such as poverty, unemployment, illiteracy, social unrest. The menace has to be put to account.

Lastly, the Court stated that it has to ensure that there is no unwarranted misuse or abuse of process to encroach upon the life and liberty of the applicant as enshrined under Article 21 of the Constitution of India. Also, the Court has to see that the Rule of Law is followed and the administration of justice is not hampered, the guilty are brought to book.

In view of the above anticipatory bail application was dismissed. [Dr Rajeev Gupta v. State of U.P., 2022 SCC OnLine All 155, decided on 25-2-2022]


Advocates before the Court:

Counsel for Applicant: – Purnendu Chakravarty

Counsel for Opposite Party:- Anurag Kumar Singh

National Consumer Disputes Redressal Commission
Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission (NCDRC): The Coram of Justice R.K. Agarwal (President) and Dr S.M. Kantikar (Member) analyses a matter wherein a patient developed serious issues after being operated, which led to her death, hence the doctors/hospital were alleged for medical negligence.

An appeal was preferred by Kapil Aggarwal and others (Appellants/Complainants) under Section 19 of the Consumer Protection Act, 1986 against the impugned order passed by the Haryana State Consumer Disputes Redressal Commission wherein the complaint of alleged medical negligence was dismissed against the Sarvodaya Hospital & Research Centre.

Factual Matrix

Complainant 1 had admitted his wife (patient) to Sarvodaya Hospital & Research Centre at Faridabad (Hospital). OP 2 examined the patient and was advised for removal of uterus. The patient was also suffering from umbilical hernia. The doctors specifically informed the patient’s condition was not suitable for two surgeries, which could prove fatal.

After being operated on, the patient’s condition was serious, hence she was shifted to ICU and put on oxygen and artificial ventilation support.

The Complainant was shocked to learn from the ICU bedside ticket that along with Hysterectomy, the surgery for hernia was also performed. No consent was given for hernia operation. Post operatively, the patient developed hypoxic encephalopathy. It was further alleged that in the ICU, Tracheostomy procedure was done four times.

It was also alleged that due to repeated X-ray & CT scan, the patient received heavy doses of radiation, which led to fall in Hb% to 8.3 g%. Due to the entire treatment being negligent, the patient’s death was caused.

On being aggrieved with the above, a complaint was filed seeking compensation to the tune of Rs 45,42,500.

Though the State Commission dismissed the above-stated complaint and on being aggrieved with the same, the instant first appeal was filed.

Analysis, Law and Decision

Coram noted from the medical record that based on the patient’s condition and the investigation, the doctors planned for Laparoscopic Total Hysterectomy.

As per the medical literature on laparoscopic hysterectomy surgeries, during the laparoscopic procedure umbilical port is used, and after TLH, at the time of removal, the umbilical port shall be closed.

In the instant case, admittedly, the patient had umbilical hernia and in the Commission’s opinion, the method adopted by the Surgeon was correct. Moreover, knowing the morbid obesity and other comorbidities, the operation was performed after obtaining high risk consent. Thus, it was TLH only and not the second surgery for the repair of hernia as no mesh and/or trackers were used for Umbilical Hernia repair surgery.

Whether it was a medical negligence wherein the patient suffered complication post-operatively?

In Commission’s opinion, both the procedures were performed as per standard of practice and unfortunately the patient developed serious complications post-operatively which were promptly treated by the team of doctors.

Further, the Coram relied on a Supreme Court decision in Achutrao Haribhao Khodwa v. State of Maharashtra, (1996) 2 SCC 634, wherein it was noticed that:

“in the very nature of medical profession, skills differs from doctor to doctor and more than one alternative course of treatment are available, all admissible. Negligence cannot be attributed to a doctor so long as he is performing his duties to the best of his ability and with due care and caution. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession.” 

Supreme Court observed that every mishap shall not be construed as negligence of the treating doctor or the hospital to fasten the liability.

Hence, in the present matter, medical negligence would not be conclusively attributed against the hospital and doctors.

Therefore, the first appeal was dismissed. [Kapil Aggarwal v. Sarvodaya Hospital & Research Centre, 2022 SCC OnLine NCDRC 21, decided on 8-2-2022]


Advocates before the Commission:

For the Appellant :

Mr. Prashant T. Bhushan, Advocate

Dr. H. M. Gupta, G.P.A. of the Appellants

For the Respondent:

Mr. S.N. Parasar, Advocate for R-1 to 5

Mr. Maibam N. Singh, Advocate for R-6

Case BriefsSupreme Court

Supreme Court: The Division Bench comprising of Hemant Gupta* and V. Ramasubramanian, JJ., set aside NCDRC’s order granting 14 lakhs compensation to the claimants in negligence claim against doctors. The Bench stated,

“The doctors are expected to take reasonable care but none of the professionals can assure that the patient would overcome the surgical procedures.”

In the instant case, the National Consumer Disputes Redressal Commission (NCDRC) had directed the appellants i.e., Bombay Hospital & Medical Research Centre and Dr. C. Anand Somaya to pay a sum of Rs. 14,18,491/- along with interest at 9% p.a. to the claimants. The claimants, namely legal heirs of the deceased – patient Dinesh Jaiswal had alleged medical negligence and deficiency of service on the part of the Hospital and the Doctor in treating the patient.

Factual Analysis

Noticeably, the allegation against the hospital was of failure of the Doctor to take the follow-up action after surgery, a delayed decision to amputate the leg subsequent to re-exploration, and the alleged undue foreign visit of the Doctor.

Admittedly, the patient was in critical condition when the Doctor was consulted and surgery was thereafter performed within two days. Rejecting the claim of negligence, the Bench opined that non-working of the DSA machine and consequent delay in performing the test could not be said to be negligence on the part of the Doctor or the Hospital. The Bench remarked,

“DSA machine is a large, expensive and complicated machine which unfortunately developed certain technical problem at the time when patient had to be tested. Any machine can become non-functional because of innumerable factors beyond the human control as the machines involve various mechanical, electrical and electronic components.”

Since the DSA test of the patient was conducted in the Hospital prior to surgery was a proof that DSA machine was not dysfunctional for a long time. Moreover, the alternative process to determine the blood flow was carried out by angiography and the decision for re-exploration was taken. On the issue of non availability of operation theatres, the Bench held,

“No fault can be attached to the Hospital if the operation theatres were occupied when the patient was taken for surgery. Operation theatres cannot be presumed to be available at all times.”

Therefore, the Bench opined that non-availability of an emergency operation theatre during the period when surgeries were being performed on other patients was not a valid ground to hold the Hospital negligent in any manner. In respect of the allegation that doctors failed to amputate legs on time, the Bench observed that efforts were being made to save the limbs as amputation was considered as the last resort. The amputation was done as per the advice of Dr. Pachore, who was the expert in that subject. Similarly, with regard to the contention of the Doctor being on a foreign visit, the Bench held that mere fact that the Doctor had gone abroad could not lead to an inference of medical negligence as the patient was admitted in a hospital having specialists in multi-faculties.

Findings of the Court

Noticeably, it was not the case of the complainant that Doctor was not possessed of requisite skill in carrying out the operation. Also, there was no proof of negligence in performing the surgery or in the process of re-exploration. Therefore, the Bench expressed,

“In spite of the treatment, if the patient had not survived, the doctors cannot be blamed as even the doctors with the best of their abilities cannot prevent the inevitable.”

Opining that there is a tendency to blame the doctor when a patient dies or suffers some mishap, the Bench stated that the doctors are expected to take reasonable care but none of the professionals can assure that the patient would overcome the surgical procedures.

“It is too much to expect from a doctor to remain on the bed side of the patient throughout his stay in the hospital which was being expected by the complainant here. A doctor is expected to provide reasonable care which is not proved to be lacking in any manner in the present case.”

Decision

Spotting both legal and factual errors in the findings recorded by NCDRC, the Bench opined that the order holding the Hospital and the Doctor guilty of medical negligence were not sustainable in law. Consequently, the appeals were allowed. The order of the NCDRC was set aside and the complaint was dismissed.

However, the Bench directed that the sum of Rs. 5 lakhs disbursed to the complainant by virtue of interim order passed by the Court should be treated as ex gratia payment to the complainant and not to be recovered by either the Hospital or the Doctor.

[Bombay Hospital & Medical Research Centre v. Asha Jaiswal, 2021 SCC OnLine SC 1149, decided on 30-11-2021]


Kamini Sharma, Editorial Assistant has put this report together


*Judgment by: Justice Hemant Gupta

Case BriefsTribunals/Commissions/Regulatory Bodies

Consumer Disputes Redressal Commission, Gujarat State, Ahmedabad: Noting the fact that a patients Kidney was removed instead of the stones in the Kidney, Dr J.G. Mecwan (Presiding Member) expressing its’ opinion on medical negligence and hospital’s vicarious liability expressed that,

Hospital is liable with respect to medical negligence that may be direct liability or vicarious liability which means the liability of an employer for the negligent act of its employees.

Facts in Nutshell

Complainant stated that the present appellant was a hospital run by a charitable trust and Dr Shivubhai Patel was working as a Medical Officer/surgeon at the KMG General Hospital.

Complainant’s case was that the husband of the complainant approached the opponent with the complaint of back pain and difficulty in urination in the K.G.M Hospital and thereafter the Surgeon examined him and advised for USG. In the USG report it was revealed that the deceased’s left kidney was maltreated and therefore he was advised to go to some higher center for operation but as the complainant was unable to go there due to his financial condition, necessary medicines were prescribed by the opponent Doctor.

Complainant visited the opponent hospital with unbearable pain and therefore, a special investigation was done and the report was suggestive of 14mm stone with obstruction at P.U.J in left kidney and the right kidney was normal.

It is further submitted by the complainant that the operation was performed for removal of the stone from the kidney but instead of stone, the Kidney was removed by Dr Patel without any consent of her husband.

After the above incident, patient’s condition worsened, and he eventually died and therefore the complainant filed a consumer complaint against the opponent for gross medical negligence and deficiency in service before the District Commission.

District Commission partly allowed the complaint of the complainant.

Being aggrieved by the impugned order of the District Commission, Nadiad the original opponent 02 has filed the present appeal against the original complainant before this Commission.

Main Consideration:

Opponent Doctor removed the Kidney instead of removing the stone from the kidney.

Opponent 3 – Insurance Company contended that Opponent 2 Hospital had taken an insurance policy for the legal liability and therefore OP-3 was not at all liable for the payment of the medical negligence for the opponent Doctor i.e. employee of the opponent 2 Hospital.

Commission noted that that the policy was taken for legal liability for the indoor patients and outdoor patients of the hospital and therefore in the opinion of this Commission when policy was taken for the legal liability of the indoor and outdoor patients and not taken for professional Indemnity then medical negligence for the opponent 01 doctor i.e. employee of the opponent 02 – Hospital, Insurance Company cannot be held liable to make payment.

Hospital’s Liability

Coram expressed that Hospital was liable with respect to medical negligence that may be direct liability or vicarious liability which means the liability of an employer for the negligent act of its employees.

An employer is responsible not only for his own acts of commission and omission but also for the negligence of its employees, so long as the act occurs within the course and scope of their employment. This liability is according to the principle of ‘respondent superior’ meaning ‘let the master answer’.

Concluding the matter, the Commission held that when Doctor is liable for the act of medical negligence then the Hospital is also vicariously liable for the act of Doctor and therefore District Commission Order was not just and proper, hence was modified as under:

“Opponent No. 02 – K.M.G. General Hospital is hereby ordered to pay Rs. 11,23,000/-(Rupees Eleven Lac Twenty Three Thousand Only), to the complainant with interest at the rate of 7.5% from the date of filing of the compliant till its realization and also ordered to pay Rs. 5000/- (Rupees Five Thousand Only) towards mental agony and cost of the complaint.”

[KMG General Hospital v. Devendrabhai K. Raval, Appeal No. 1457 of 2013, decided on 7-10-2021]


Advocates before the Commission:

Mr M.K. Joshi, L.A. for the appellants,

Mr V.K. Bhatt, L.A. for respondent no. 01, Mr M.K. Joshi, L.A. for respondent no. 02,

Mr. V.P. Nanavaty, L.A. for the respondent no. 03.

Case BriefsDistrict Court

Patiala House Courts, New Delhi: While addressing a case of medical negligence Prayank Nayak, MM-01, expressed that doctors can be summoned for negligence only if the negligence is gross or the doctors did not possess the requisite skill required for the treatment

Complainant sought summoning of accused namely Dr Ram Manohar Lohiya, Hospital, New Delhi, CMO, Dr Ram Manohar Lohiya, Hospital and Dr Dinesh, Dr Ram Manohar Lohiya Hospital for offence punishable under Sections 270, 272, 326, 336, 338 of Penal Code, 1860.

Victim was aged about 3 months when she developed fever, cough and bronco pneumonia for which she sought treatment at OPD of RML. She was administered antibiotics and infusion intravenously. It was alleged that due to faulty administration of injection in a rash and negligent manner, victim developed gangrene.

After her examination by several doctors, her right hand had to be amputated from the wrist down. Hence it was stated that due to the negligence, commissions, and illegal omission of RML Hospital and its doctors they were liable to be punished under Sections 269, 270, 326 and 338 of the Penal Code, 1860 (IPC).

Analysis, Law and Decision

Law on Medical Negligence and Criminal Liability

Court expressed that the law of the land on the above stated was summed up in the decision of Supreme Court in Jacob Mathew v. State of Punjab, (2005) 6 SCC 1,

“…To prosecute a medical professional for negligence under criminal law it must be shown that the accused 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.”

 Delhi High Court in Hukam Chand v. State, 2016 SCC OnLine Del 4129, held that:

“6. Thus to proceed against a doctor the complainant is required to, even at the stage of summoning, prima facie show that the negligence is of such a kind that either the doctor was not processed of the requisite skills which he professed to possess or the negligence and recklessness was of a high degree which could be termed as gross.”

 Hence, Court expressed those doctors can be summoned for negligence only if the negligence is gross or the doctors did not possess the requisite skill required for the treatment.

However, in the present matter, there was nothing on record to show that the treating doctors were grossly negligent while treating the victim. Even the Committee of the doctors did not mention that there was any negligence on the part of the treating doctors.

In Delhi High Court’s decision of Dr A.K. Banerji v. State, 2014 SCC OnLine Del 2322, while dealing with a criminal revision in a matter relating to medical negligence where the victim’s hand had to be amputated, held that since the Medical Council of India had opined that there was no negligence on the part of the treating doctor, summoning order of the magistrate for offence punishable under Section 338 IPC was liable to be set aside.

Bench held that since no sanction under Section 197 CrPC had been obtained, the doctors could not be summoned for the charges of medical negligence.

On finding no grounds for proceeding against the hospital and treating doctors arrayed as accused, the complaint was dismissed under Section 203 CrPC. [Gudia v. Dr Ram Manohar Lohia Hospital, CC No. 18745 of 2016, decided on 12-10-2021]

Case BriefsSupreme Court

Supreme Court: A Division Bench comprising of Indira Banerjee and V. Ramasubramanian, JJ., gave succour to a doctor in service of the Delhi Government who was denied study leave to pursue post graduation amid COVID-19 pandemic last year. The Court directed PGI, Chandigarh to admit him to the post graduate course scheduled to commence in July 2021, on the basis of INICET-2020, which he had successfully cleared. The Court observed that it would be a travesty of justice to deny relief to the appellant, when he had to make a personal sacrifice in the larger public interest, to serve the cause of humanity.

The task before the Court was to pacify the legitimate expectation of COVID-19 warriors like the appellant to fair treatment, in conformity with the Service Rules by which they are governed, to enable them to pursue higher education and enhance their educational qualifications.

Factual Background

The appellant, a doctor, who joined service of the Delhi Government in 2014, was presently posted as Medical Officer of the Emergency and Accidents Department at Deen Dayal Upadhyay Hospital, New Delhi. He has duly completed five years of regular and continuous service with the Government of NCT of Delhi and was thus eligible to avail study leave to pursue the post graduate course, in accordance with the Directives and Guidelines of the Ministry of Health and Family Welfare, Government of India.

The appellant successfully cleared INICET-2020 (Institute of National Importance Combined Entrance Test), a highly competitive examination for admission to the MD/MS courses in some of the premier medical institutions of the country, such as AIIMS and PGI, Chandigarh. On 29-12-2020, he was allotted a seat by PGI, Chandigarh in the MD course in Paediatrics.

The authorities of Deen Dayal Upadhyay Hospital duly issued the required ‘No Objection Certificate’ to the appellant to enable him to pursue post graduation. After completing all requisite formalities, the appellant applied for study leave to the Delhi Government as per the applicable Rules to enable him to join the post graduate course. His application was however declined in view of the policy decision taken by the Government.

The Policy Decision

On or about 20-10-2020, a policy decision was taken, not to grant any further study leave to the doctors working in the hospitals of the Government of NCT of Delhi, in view of COVID-19 pandemic. Another Office Order dated 22-10-2020 was issued by the Government of NCT of Delhi, Health and Family Welfare Department (Medical Branch) which read: “In view of the prevailing situation of COVID-19 in NCT of Delhi and the projections made by Experts about the expected increase in cases of COVID-19 during the period November-December, 2020, it is not feasible, in public interest to spare the services of GDMOs, to pursue Post Graduation courses. GDMOs cannot be acceded to at this juncture.”

Grievance

The appellant was aggrieved by the fact that even though he cleared INICET-2020 and was selected for post graduate course in PGI, Chandigarh, he was declined study leave. By an order dated 22-1-2021, the Delhi Government rejected appellant’s application for study leave, having regard to the policy decision taken by the Government on 20-10-2020 and the subsequent order dated 22-10-2020. On 31-1-2021, admission to post graduate courses in PGI, Chandigarh, for the 2020 session was closed, and the allotment of post graduate seat to the appellant was cancelled.

The appellant filed a writ petition in the Delhi High Court challenging the action of the Delhi Government in not granting study leave. The writ petition was dismissed. Aggrieved, the appellant approached the Supreme Court.

Contentions

The appellant argued that he had arbitrarily been declined study leave whereas many other doctors, similarly circumstanced, had been granted study leave to pursue post graduate courses, even after the onset of the COVID-19 pandemic. It was submitted that there was no justification in refusing study leave to the appellant and depriving him of the opportunity to pursue post graduate studies in a premier institution.

The Delhi Government argued that it had neither acted arbitrarily, nor discriminated against the appellant. The order of refusing study leave to the appellant had to be taken in view of the pandemic, with predictions of exponential rise in the number of COVID-19 cases and the consequential policy decision taken on 20-10-2020. It was submitted that the Delhi Government acted within the parameters of law and did not commit any wrong in not allowing study leave to the appellant.

Analysis and Observations

Judicial review of policy decisions

The Court noted that while it is true that numerous doctors were granted study leave during the COVID-19 pandemic, but it was before the policy decision taken by the Government. The fact that some doctors may have been granted study leave after the spread of COVID-19 cases in Delhi, did not debar the Government from taking a policy decision not to grant study leave to doctors any further, when exigencies necessitated such a decision. The Court observed:

In any case the prudence of and/or justification for the policy decision cannot be examined by the Court in exercise of its extraordinary power of judicial review under Article 226 of the Constitution of India.

Policy decision not arbitrary

The Court was of the view that the policy decision not to grant study leave to doctors for a certain length of time, in apprehension of a rise in COVID-19 cases, to ensure the availability of as many doctors as possible for duty, was neither arbitrary, nor discriminatory, nor violative of Article 14 of the Constitution of India.

Legitimate expectation of COVID-19 Warriors

The Court recorded that while it may be true that no leave can be claimed as a matter of right and the Delhi Government apparently acted within the parameters of law in declining study leave to the appellant in the teeth of COVID-19 pandemic when doctors were urgently required in Government hospitals to treat COVID-19 patients. But at the same time, said the Court:

At the same time, this Court cannot be oblivious to the legitimate expectation of COVID-19 warriors like the appellant to fair treatment, in conformity with the Service Rules by which they are governed, to enable them to pursue higher education and enhance their educational qualifications. Needless to mention that doctors with higher qualifications and special knowledge in specific areas would be an asset to the medical fraternity, as also to the society.

Need for reconsideration

The Court noted that the policy decision not to grant study leave to doctors working in hospitals under the Delhi Government in apprehension of rise in COVID-19 cases, is obviously a temporary one. The policy cannot continue indefinitely irrespective of changes in circumstances. The policy has necessarily to be reviewed from time to time and relaxed and/or modified once there is decrease in the number of COVID-19 cases in the NCT of Delhi.

The Court was of the view that since COVID-19 situation in Delhi is now comparatively better, the application of the appellant for study leave should be reconsidered. The Delhi Government should, as a model employer, make an endeavour to see that the appellant is not deprived of the fruits of his success in the INICET-2020 and is able to pursue post graduate studies.

Relief

The Court rejected the submission that the appellant be admitted in the January 2021 session, since the classes commenced over six months ago and the students who were admitted to that session have completed their first semester and entered the second semester. There could be no question of any direction to admit him to the second semester directly when he has not been able to attend a single class of the first semester.

The question was whether the appellant can be accommodated in the next academic session scheduled to commence in July 2021.

The Court was of the opinion that it cannot fold its arms and remain a mute spectator to the plight of the appellant. After all, “nothing rankles the heart more than a brooding sense of injustice”. It reiterated the preposition of law that:

[In] rare and exceptional cases, a meritorious candidate, who has suffered injustice by reason of his/her inability to secure admission in a medical course, whether under-graduate or postgraduate, due to no fault of his/her own, who has taken recourse to law promptly, without delay, might be granted relief of being accommodated in the same post in the next session.

Since the seat in the post graduate course in PGI, Chandigarh which remained unfilled due to inability of the appellant to join has been carried over to the July 2021 session which was yet to commence, and re-advertised, the Court deemed it appropriate to direct PGI, Chandigarh to admit the appellant to the post graduate course scheduled to commence in July 2021 on the basis of INICET-2020, which he has successfully cleared. Otherwise, according to the Court, the appellant would be irreparably prejudiced.

The Delhi Government was also asked to reconsider appellant’s application for study leave taking into consideration the decline in COVID-19 cases in NCT of Delhi. It was directed that unless there is a substantial rise in COVID-19 cases, the leave application of the appellant shall not be declined.

Clarification

Before concluding, the Court stated that these directions were being passed in exercise of the power under Article 142 of the Constitution in the facts and circumstances of the case; and the instant order will not be treated as a precedent. [Rohit Kumar v. State (NCT of Delhi), 2021 SCC OnLine SC 468, decided on 15-7-2021]


Tejaswi Pandit, Senior Editorial Assistant has reported this brief.

Case BriefsSupreme Court

Supreme Court: The bench of Indira Banerjee and MR Shah, JJ has directed AIIMS to postpone the Institute of National Importance Combined Admission Test (INI CET) examination by at least a month, after doctors with an MBBS degree, aspiring for admission to the Post Graduate courses for the July 2021 session in the units of AIIMS (All India Institute of Medical Sciences), PGIMER Chandigarh, JIPMER Puducherry and NIMHANS Bengaluru filed a petition calling AIIMS’ decision to conduct INI CET 2021 on 16th June, 2021, hasty.

It was argued,

“… the hasty decision taken by AIIMS to conduct INI CET 2021 on 16th June, 2021 has seriously prejudiced innumerable aspirants for admission to Post Graduate courses of the institutions of national importance, who are serving in Covid hospitals in various parts of the country. Many of them have been rendering services at Covid Centres located far away from the examination centres for which they have opted.”

The INI CET is being conducted to fill up 850 MD and MS seats in 6 units of AIIMS, PGIMER Chandigarh, JIPMER Puducherry and NIMHANS Bengalure. As per submissions before the Court, about 80,000 doctors with the MBBS degree are expected to take the INI CET. Post Graduate courses of medical colleges, other than those mentioned above are through the NEET-PG, which has been postponed beyond 31st August, 2021.

In such circumstances, it was argued, that,

“It would be extremely difficult, if not virtually impossible for many candidates for the INI CET to reach their examination centres from their places of duty. Many of the doctors are exposed to and are running the risk of contracting Covid 19 and they may have to isolate and/or quarantine themselves. Even otherwise holding the INICET on 16th June, 2021 will result in spread of the virus and increase in Covid 19 cases.”

Hence, considering the current scenario and the prayers by the doctors, the Court was of the opinion that the fixing of the INI CET on 16.06.2021 is arbitrary and discriminatory, more so since other important examinations including Joint Entrance Examinations, Board Examinations etc. have been postponed.

The Court, hence, directed that the INI CET be postponed by at least a month from 16th June, 2021.

[Poulami Mondal v. AIIMS, 2021 SCC OnLine SC 424, order dated 11.06.2021]


For Petitioner(s): Mr. Sanjay R. Hegde, Sr. Adv.

Mr. Arvind P Datar, Sr. Adv.

Ms. Sonia Mathur, Sr. Adv.

Ms. Pallavi Pratap, AOR

M/S. Dharmaprabhas Law Associates, AOR

Dr. Charu Mathur, AOR

Mr. Chandrashekhar A. Chakalabbi, Adv.

Mr. Awanish Kumar, Adv.

Mr. Shiv Kumar Pandey, adv.

Mr. Anshul Rai, Adv.

Mr. Shikha Bharadwaj, Adv.

Mr. Abhinav Garg, Adv.

Mr. Sanjay Kumar Dubey, Adv

Ms. Tanvi Dubey, Adv.

Mr. Puneet Pathak, Adv.

For Respondent(s): Mr. Dushyant Parashar, AOR

National Consumer Disputes Redressal Commission
Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission (NCDRC): The Division Bench of Dr S.M. Kantikar (Presiding Member) and Dinesh Singh (Member), while addressing the consumer complaint held that:

Mode of treatment/ skill differ from doctor to doctor and the doctor is not liable for negligence if he performs his duty with reasonableness and with due care.

Complainant 1 (hereinafter referred to as ‘the patient’) was suffering from congenital spinal deformity. Her father (complainant 2) consulted Dr Rajendra Prasad and advised Complainant 2 to contact OP 2. The patient was taken to OP 1 who examined the patient and advised urgent surgery and the delay otherwise will aggravate the disease.

Factual Matrix

It was alleged that operation took long time, the patient was taken to operation theatre (OT) at 9 a.m. and operation completed at 5 p.m. After the operation one junior doctor came from OT and informed the complainant 2 that operation was successful. The patient’s father went to see his daughter in the recovery room, but she was in semi-conscious state & crying. At 5.30 p.m., he noticed no movements in her legs and same was informed the duty doctors. The CT scan of the operated area was done and after examining CT report, the Opposite Party 2 expressed with sorry figure to the Complainant 2 and his elder brother, Dr. Sarveshwar Puri that one screw was pressing the spinal cord and as a result thereof the reoperation was necessary for removal of the said screw. It was further alleged that the C-arm was not used during the operation as it was not functioning properly and it was not disclosed by the Opposite Party 2. It was further alleged that during any spinal surgery, presence of Neurosurgeon was must, but in the present case, the operation was performed under the supervision of the Opposite Party 2 only, who was just an orthopaedic surgeon. After the operation on the insistence of the Complainant 2, then only from Neurosurgery Department Dr. S. S. Kale the Neurosurgeon (the Opposite Party 3) was called. Thereafter 2nd operation was conducted at 7.30 pm in the presence of the Neurosurgeon Dr S. S. Kale. The operation ended at 9.00 pm. The patient remained in ICU for 10 days, but no recovery in movements of the lower part of the body.

Patient became paralysed. On being aggrieved, complainants filed the consumer complaint under Section 21(a)(i) of the Consumer Protection Act against the AIIMS and the treating doctors for gross carelessness and deficiency in service causing complete paralysis of lower part of patient’s body and damage to other organs.

Analysis and Decision

Bench noted the fact that OP 2 i.e. the doctor at AIIMS ruled out the presence of any spinal cord anomalies with the help of investigations like CT and MRI of the whole spine. Thereafter, the patient was advised for corrective bony deformative surgery for the patient and in Commission’s opinion, it was reasonable and standard of spinal surgical practice from the AIIMS doctors.

From medical literature from the Standard textbooks on Spinal Surgery it is apparent that any surgical procedure complications are inherent.

It is not uncommon that while putting the rod into a corrective position, at times the screws moves slightly from the original position, which can cause neurological or vascular problem in few patients. 

In the instant matter, as soon as the neurological complication was noticed, the CT scan revealed one of the screws penetrating the spinal cord. Hence the decision to remove the same was taken in consultation with the parents of the child. Methylprednisolone was given as an established treatment protocol in acute spine cord injury and decongestants were given to prevent CSF leak. This cannot be construed as shortcomings or medical negligence.

Therefore, in view of the above discussion, Commission could not find the case of medical negligence and stated that the spinal correction surgery took place as per the accepted standards and referred to the Supreme Court decision in Achutrao Haribhau Khodwa v. State of Maharashtra, (1996) 2 SCC 634.

While adding that the Bench has sympathy for the patient for having Congenital Kyphoscoliosis deformity, however, sympathy cannot substitute for conclusive evidence of medical negligence.

Advice by the Commission:

AIIMS is a premier institute in India, renowned over the decades for its illustrious work. Its ‘Scoliosis and Spine’ Unit has been running since 1976, under ‘Orthopaedics’. We may observe that ‘Scoliosis and Spine’ requires an integrated concomitant approach by both ‘Orthopaedics’ and ‘Neurosurgery’. To take its Unit to the next level, as a systemic improvement, the Director, AIIMS may kindly consider enhanced integration of ‘Orthopaedics’ and ‘Neurosurgery’ in its said Unit, including by posting both ‘Orthopaedics’ and ‘Neurosurgery’ therein as well as working towards creating a speciality in its own right for ‘Spinal Surgery’, having knowledge in both ‘Orthopaedics’ and ‘Neurosurgery’. [Shrishti Puri v. AIIMS, Consumer Case No. 54 of 2007, decided on 09-02-2021]


Advocates who appeared:

For Complainants:

Anand S. Asthana, Advocate
Pankaj Singh, Advocate
Dr Someshwar Puri (complainant – 2)

For Opposite Parties:

Vikrant N. Vasudeva, Advocate

Mr Parv Ahluwalia, Advocate
Sarthak Chiller, Advocate
Dr Arvind Jaiswal (OP-2)

Dr Shashank Shekhar Kale (OP-3)

Case BriefsHigh Courts

Delhi High Court: V. Kameswar Rao, J., while addressing an issue wherein a doctor sought for a study leave for pursuing MD/MS Course, stressed upon the ambit of the power of judicial review.

Petitioner sought a direction against respondents 1 and 2 to issue the relieving order and grant study leave to him in order to enable him to pursue MD/MS Course in Pediatrics from Post Graduate Institute of Medical Education and Research, Chandigarh (PGI) as petitioner satisfied the criteria laid down for grant of study leave in the Office Memorandum dated 02-11-2012.

The request for study leave was denied in view of the prevailing situation i.e., COVID-19.

Further, it was added that the Lt. Governor took a considered view that in these times of Pandemic COVID-19, more medical staff was required. Since some of the doctors had already proceeded on study leave, it would not be prudent to spare more Doctors. Hence the LG desired that the department may kindly be advised to not sanction any more study leave application.

 Analysis, Law and Decision

The decision in regard to study leave came under the decision-making power of the Lt. Governor, Govt. of NCT of Delhi based on the prevailing COVID-19 situation in the city and in the instant case, the said request of the petitioner was not acceded to.

Judicial Review

Court stated that the Court, in exercise of its power of judicial review, cannot sit as an Appellate Authority over the decision taken by the administration/management.

Further, the Bench expressed that the decision was taken giving due regard to the exigencies, which may arise in the course of administration.

“…petitioner being a meritorious candidate, has a legitimate expectation to acquire a higher qualification and advance in his career but at the same time, as an employee working in the Govt. of NCT of Delhi, is bound by the Rules framed by the Government i.e. Rule 50 of the Leave Rules clearly stipulates that the grant of study leave is not a matter of right, as the same shall be granted to the government servant with due regard to the exigencies of public service.”

 Hence, it was held that in view of the Supreme Court decision in State of Punjab v. Dr Sanjay Kumar Bansal, (2009) 15 SCC 168,  when the decision has been taken at the highest level in the Government, this Court cannot sit as an Appellate Authority over such a decision. [Dr Rohit Kumar v. Lt. Governor of Delhi,  2021 SCC OnLine Del 317, decided on 02-02-2021]


Advocates for the parties:

Petitioner: Geeta Luthra, Senior Advocate with Nitin Saluja and Varun Dewan, Advocates

Respondents: Avinash Ahlawat, SC for GNCTD with Tania Ahlawat, Nitesh Kumar Singh and Palak Rohmetra, Advocates

Case BriefsHigh Courts

Delhi High Court: Manoj Kumar Ohri, J., denied bail to the petitioner who is accused of commission of offence under Section 315 (act done with intent to prevent child being born alive or to cause it to die after birth) and Section 304 (punishment for culpable homicide not amounting to murder) of the Penal Code, 1860.

The instant application was filed under Section 439 of the Criminal Procedure Code, 1973 read with Section 482 CrPC seeking regular bail in the FIR registered under Section 315 of Penal Code, 1860.

Contentions

Petitioners Counsel, Madhusmita Bora, Advocate submitted that the petitioner’s age is 70 years and in terms of the decision in Jacob Mathew v. State of Punjab, (2005) 6 SCC 1, he ought not to have been arrested. Further, it was added that the petitioner is otherwise qualified as a medical surgeon and performed the surgery at the request of the hospital concerned. 

Additionally, it was submitted that the FIR was of the year 2015, but petitioner got arrested in the year 2020.

Neelam Sharma, APP for State submitted that though the FIR was initially registered under Section 315 IPC subsequently, Section 304 IPC was added as the patient had expired. Further, it was added to the submissions that, petitioner was neither on the panel of the hospital nor even a visiting surgeon.

Petitioner, knowing fully well that he was not a qualified Obstetrician & Gynaecologist, still performed the surgery when there was no urgency as the pregnancy was only 19-20 weeks old, which led to the death of the patient.

A complaint was made to Delhi Medical Council, which, after Disciplinary proceedings found all the Doctors concerned guilty of negligence. In fact, it was found that co-accused, Dr Hitender Vashisht, the In-charge/Director of R.P. Memorial Hospital was not even registered with the DMC as he is not the holder of qualification in Modern Scientific System of Medicine and should refrain from pre-fixing ‘Dr.’ to his name.

Petitioners Counsel made a bald assertion that no Doctor ought to be arrested in a case of medical negligence however, it is seen that in the present case, the Investigating Officer has taken an independent opinion from Delhi Medical Council, which conducted the Disciplinary proceedings.

It has been observed that the Disciplinary Committee, comprising of four Doctors, found the petitioner guilty along with other co-accused persons.

In fact, the Disciplinary Committee recommended that the name of the petitioner be removed from the State Medical Register of the Delhi Medical Council for a period of 180 days. The decision was confirmed by Delhi Medical Council and the petitioner’s name was removed for 180 days.

Supreme Court’s decisions in Kalyan Chandra Sarkar v. Rajesh Ranjan, (2004) 7 SCC 528State U.P. v. Amarmani Tripathi, (2005) 8 SCC 21, have considered parameters of a bail application.

Bench observed that the petitioner did not deny the fact that he had performed the alleged surgery on the deceased.

Hence on taking into consideration the Disciplinary Committee’s report and its recommendations, Court prima facie opined that the there was reasonable ground to believe that the petition had committed the offence.

Bail application to the petitioner was denied.[Suresh Chandra Gupta v. NCT of Delhi, 2020 SCC OnLine Del 1594, decided on 09-12-2020]

National Consumer Disputes Redressal Commission
Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission (NCDRC): A Division Bench of Dr S.M. Kantikar (Presiding Member) and Dinesh Singh (Member), while addressing the issue of medical negligence by the doctors of Christian Medical College, Vellore awarded compensation to the deceased’ wife.

Deceased got admitted to as a private patient at Christian Medical College, Vellore — OP and on being examined it was found to be a case of Coronary Artery Disease.

The treating doctor advised the deceased to undergo Coronary Angiogram test when the same was conducted, the doctor expressed that it would be better if the patient undergoes Coronary Arterial By-pass Graft (CABG) surgery instead of angioplasty to avoid multiple stenting.

After a couple of days, Dr Sujit discontinued medicines Ecospirin and Clopidogrel and started Heparin 5000 units 6 hourly.

Heparin was started without any laboratory investigations and monitoring protocol.

Complainant had notice bleeding at the site of insertion of the needle but the said complaint was ignored by the doctors.

On the 3rd does of Heparin being given to the patient, it was noted that he suffered from a mini-stroke after that.

An immediate CT Scan was to be done but no stroke evaluation was suggested by the doctor. Later the deceased was transferred to the Thoracic surgery unit in Semi-ICU. Neurologist suggested a CT-Brain Plain study but the same was delayed.

The neurologist after conducting the above-stated scan informed the complainant that as the patient already progressed into coma, nothing more could be done. Finally, doctors suggested the family that they should accept the inevitable event and instead of wasting money allow them to withdraw ventilator support.

Later, the complainant took the opinion of several other doctors who said that the delay caused for stroke management was fatal and it was due to lapses in the hospital.

Patients once again suffered a stroke and died on nothing being done by the doctors.

In view of the above-stated, present consumer complaint was filed for medical negligence and callousness of the doctors at CMC causing the death of the patient.

Commission on perusal of the facts and submissions of the case stated that, the high-risk patients living in the hospital/nursing homes or undergoing cardiac procedures should have monitoring systems to help alert the doctor/staff immediately.

Adding to its analysis, the bench also stated that pre-hospital triage and communication between radiologists, neurologists and emergency physicians are more vital.

Delay in diagnosis and management of stroke was a deficiency and not a reasonable or standard of practice.

Another significant setback that was noted was that there was an urgent need for a brain CT scan of the patient but it was delayed for more than 3 hours for the want of a fresh receipt of Rs 1850 towards CT scan charges even though complainants had already deposited 150000 in advance. 

For the above instance, the bench stated,

Hospital has every right to insist the payment but it was also a prime duty to care the emergency patient.

In view of the above, deficiency/negligence was conclusively established and hence ac compensation of Rs 25 lakhs with an interest of 8% p.a was awarded. [Yashumati Devi v. Christian Medical College, 2020 SCC OnLine NCDRC 211, decided on 11-08-2020]


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Hot Off The PressNews

Supreme Court: The vacation bench of Deepak Gupta and Surya Kant, JJ has deferred the hearing on a plea seeking protection of doctors in Government hospitals, saying since doctors have called off their strike in West Bengal and other states, there is no urgency to hear the matter. The bench said it will not issue notice to the Centre but will keep the larger issue of protection of doctors open.

“We agreed to hear the plea today as there was a strike by doctors and medical fraternity in West Bengal and other states. The strike has been called off and there appears no urgency to hear the petition. List (the matter) before an appropriate bench,”

Meanwhile, the Indian Medical Association has also filed an impleadment application seeking the court’s intervention into the plea already filed, saying protection needs to be provided to doctors across the country. The bench said it needs to take a holistic view in providing security to doctors.

“We understand it is a serious issue but we can’t provide security to doctors at the cost of other citizens. We have to take a holistic view. We have to look at the larger picture. We are not against protection to doctors,”

Doctors in Bengal had been on strike since two of their colleagues were assaulted allegedly by relatives of a patient after he died last week. They called off their protest Monday night after West Bengal Chief Minister Mamata Banerjee in a meeting assured them of steps by her Government to scale up security at state-run hospitals in the state.

The plea in the Supreme Court was filed on 14.06.2019 to seek directions to Union ministries of home affairs and health and West Bengal to depute government-appointed security personnel at all state-run hospitals to ensure safety and security of doctors. It had also sought directions to Bengal government to take the strictest legal and penal action against those who assaulted the two junior doctors at a hospital in Kolkata. The plea had cited an IMA data to say that more than 75 percent doctors across the country have faced some form of violence. It said the study concluded that 50 percent violent incidents have taken place in the Intensive Care Unit of hospitals and in 70 percent cases, relatives of patients were actively involved.

(Source: PTI)