Case BriefsHigh Courts

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 Hemant Gupta and A.S. Bopanna, JJ. absolved a doctor and a hospital of liability for medical negligence. The Supreme Court said that failure of treatment cannot automatically make the medical professional liable for medical negligence. It was observed:

“Every death of a patient cannot on the face of it be considered as death due to medical negligence unless there is material on record to suggest to that effect.”

Further, explaining that such cases may involve highly technical medical issues, the Court said that mere legal principles and general standard of assessment may not be sufficient. Additionally, the Court considered when can the principle of res ipsa loquitur be invoked in cases of medical negligence.

The instant was a case where the patient, set to undergo a surgery, suffered cardiac arrest after she was administered anaesthesia. Following is a comprehensive report of Supreme Court’s opinion on medical jurisprudence.

Facts and Appeal

One Jasbeer Kaur was admitted in Sun Flag Hospital, Faridabad, to undergo surgery. She was diagnosed with hydronephrosis, her right kidney was severely damaged and left kidney was also diagnosed with stone. On being declared fit for surgery, it was decided that both kidneys could not be operated simultaneously and the less affected, i.e. left kidney, would be operated first. An informed consent of high-risk surgery was obtained from the patient as well as her husband. The surgery on left kidney was a successful operation and patient’s condition improved.

Thereafter, the patient was taken for second surgery. Dr Harish Kumar Khurana administered Pentothal Sodium and Scolin as per the medical practice. An endotracheal tube was inserted in the trachea to give nitrous oxide and oxygen. This standard procedure was also followed during the first surgery but on this occasion, patient’s condition deteriorated, her blood pressure fell and pulse became feeble, cardiac respiratory arrest was noticed, she was put on Boyle’s machine and automatic ventilator. Despite this, the patient passed away.

Patient’s husband and children filed a complaint before the National Consumer Disputes Redressal Commission (“NCDRC”) alleging medical negligence. NCDRC found Dr Khurana and the hospital guilty and directed payment of Rs 17 lakh as compensation. Aggrieved, Dr Khurana and the hospital approached the Supreme Court.

Analysis and Observations

Summarising  judicial opinion on the subject, including the decision in Jacob Mathew v. State of Punjab, (2005) 6 SCC 1 which laid down the ‘test’ for establishing medical negligence, the Supreme Court observed that:

“[It] is clear that in every case where the treatment is not successful or the patient dies during surgery, it cannot be automatically assumed that the medical professional was negligent.”

The Court said that to indicate negligence, there should be material available on record or else appropriate medical evidence should be tendered. In the instant case, apart from the allegations made by the claimants before NCDRC, no medical evidence was tendered to indicate negligence on the part of the doctor, who in fact explained his position relating to medical process to assert that there was no medical negligence. The Court said that conclusion reached by NCDRC appeared to be assumptive without the backing of medical evidence. Whether the manner in which Dr Khurana proceeded to administer anaesthesia amounted to negligence could have been determined only if there was medical evidence on record.

Informed consent of patient

The Court considered the aspect regarding consent for second surgery being taken only of patient’s husband and not the patient herself. On this, the Court noted that during the first surgery, consent of the patient as well her husband was taken. During the second surgery, the patient was recovering from the first surgery and the requirement for second surgery was informed to her. In that circumstance, informed consent was obtained from her husband.

Noting in case sheet

Rejecting NCDRC’s conclusion that Dr Khurana was negligent in not taking care of the noting in the case sheet regarding patient’s poor tolerance to anaesthesia, the Court noted that Dr Khurana was the anaesthetist during the first surgery as well and was thus aware about details of the patient to whom he had administered anaesthesia for the first surgery. The Court held that when it is shown that the earlier surgery was uneventful, in the absence of any medical evidence brought on record to the contrary regarding Dr Khurana’s failure in taking any steps while administering anaesthesia for the second surgery, the observation of poor tolerance in the case sheet by itself could not be assumed as negligence. It was observed:

“To arrive at the conclusion that there was negligence, the medical evidence to point out negligence in administering anaesthesia even in that situation was required to be tendered since the adjudicating authority is not an expert in the field of medicine to record an independent opinion.”

Res ipsa loquitur

Considering the applicability of the principle of res ipsa loquitur (things speak for themselves) to cases of medical negligence, the Court observed:

“The negligence alleged should be so glaring, in which event the principle of res ipsa loquitur could be made applicable and not based on perception.  …

Principle of res ipsa loquitur is invoked only in cases the negligence is so obvious.”

The Court felt that observations contained in NCDRC’s order were in the nature of accepting every allegation made by the claimants as the only version and it was not weighed with the version put forth by the doctors. It was noted that the patient had undergone the same process of being administered anaesthesia for the first surgery which was successful. Though in the second surgery, the patient suffered a cardiac arrest, the subsequent processes with the help of Boyle’s apparatus were conducted and the patient was moved to Critical Care Unit, whereafter subsequent efforts failed. The patient breathed her last after few days. There was no contrary medical evidence placed on record to establish that the situation had arisen due to the medical negligence on the part of the doctors.

Mere legal principles not sufficient

The Court noted that NCDRC reached the conclusion that the appellants failed to clear the Bolam test purely on applying the legal principles, without having any contra medical evidence on record despite observing that the surgeon was a qualified and experienced doctor and also that the anaesthetist had administered anaesthesia to 25,000 patients.

The Court opined that the aspect of poor tolerance to anaesthesia and what should be the gap between the two surgeries was a highly technical medical issue which was also dependant on the condition of the patient in a particular case, which required opinion of an expert in the field. There was no medical evidence based on which conclusion was reached with regard to medical negligence. The Supreme Court observed:

“[M]ere legal principles and the general standard of assessment was not sufficient in a matter of the present nature when the very same patient in the same set up had undergone a successful operation conducted by the same team of doctors.”

Magisterial enquiry report

The claimants had also filed a criminal complaint against the appellants, pursuant to which a magisterial enquiry was conducted. NCDRC placed much reliance on this enquiry report, which according to the Court could not be treated as contra medical evidence as compared to the evidence tendered by the appellants.  It was observed:

“Though the opinion of the civil surgeon who was a member of the committee is contained in the report, the same cannot be taken as conclusive since such report does not have the statutory flavour nor was the civil surgeon who had tendered his opinion available for cross-examination or seeking answers by way of interrogatories on the medical aspects.

Decision

In such view of the matter, the Supreme Court held that NCDRC’s decision could not be sustained. The appeal was accordingly allowed. [Harish Kumar Khurana v. Joginder Singh, 2021 SCC OnLine SC 673, decided on 7-9-2021]


Tejaswi Pandit, Senior Editorial Assistant has reported this brief.

Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission (NCDRC): Dr S.M. Kantikar (Presiding Member) while addressing an allegation of medical negligence, remarked that,

At times, the professional is confronted with making a choice between the devil and the deep sea and he has to choose the lesser evil.

The medical professional is often called upon to adopt a procedure that involves a higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure.

Background

Patient, the wife of the complainant was under regular observation in Civil Hospital during her pregnancy. On her complaint of labour pains, she was admitted to the Kalka Nursing Home and remained under observation and then was referred to OP-1. OP-2 performed a caesarean section and a baby girl was delivered.

Complainant submitted that after her operation, the patient developed pain and she and she became critical and unconscious; therefore, the OP-2 referred the patient to PGI Chandigarh without providing any medical attendant. The patient died on the way, and she was brought back to the OP-1 hospital.

Complainant filed a consumer complaint while alleging that medical negligence on the part of the OP-1 and OP-2 caused the death of his wife.

District Forum had allowed the complaint and ordered the OPs to pay jointly and severally a lump sum compensation of Rs 5,00,000.

State Commission also upheld the District Forum’s decision.

Being aggrieved with the above decision, OPs 1 and 2 filed the revision petition.

Main allegation of the Complainant was that the cause of death of his wife was either due to spinal shock because of excessive anaesthesia or mismanagement while applying anaesthesia or excessive bleeding at the time of delivery which the OP-2 failed to control.

Coram relied on the decision of Supreme Court in Jacob Mathew v. State of Punjab, (2005) 6 SCC 1.

The medical practitioner faced with such an emergency always tries his best to redeem the patient out of his suffering. No sensible professional would intentionally commit an act or omission which would result in loss or injury to the patient. 

Commission observed that a mere deviation from normal professional practice is not necessarily evidence of negligence. Also, mere accident is not evidence of negligence. So also, an error of judgment on the part of a professional is not negligence per se.

In view of the facts and circumstances of the present matter, Coram held that merely because the medical practitioner chose to follow one procedure and not another and the result was a failure cannot be held as a negligent act.

Commission opined that the patient was in an advanced stage of labour and it was an emergency, so OP-2’s decision was correct to perform an emergency Caesarian operation to save the life of the patient and foetus.

The duty of treating doctor is to decide the method of treatment depending upon the condition of the patients and the circumstances of each case, thus it cannot be construed as medical negligence.

The commission while concluding the decision set aside the orders of both the lower fora and revision petition was allowed. [J.N. Shori multi-speciality Hospital v. Krishan Lal, 2021 SCC OnLine NCDRC 291, Decided on 23-07-2021]


Advocates before the Court:

For Petitioners: Mr Abhineet Taneja, Advocate
For Respondent 1: Mr Bharat Swaroop Sharma, Advocate

For Respondent 2: Dr Sushil Kumar Gupta, Advocate

Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission (NCDRC): Dr S.M. Kantikar (Presiding Member) decided a matter wherein a question of whether wheelchair injuries would fall under the ambit of medical negligence or not.

In the present matter, complainant – patient came to Petitioner/OP-Hospital for follow-up check-up after her spinal surgery. It was alleged that she was very rashly and negligently wheeled from the hospital corridor, on the ramp by an unidentified security guard without putting seat belt, as a result of which she suffered ‘head-on fall’ from the wheelchair and sustained a fracture.

Further, the complainant alleged that she was not given immediate first aid and was made to stand in the queue for payment of X-Ray charges resulting to further pain and agony.

Hospital authorities were made aware of the said incident but they willfully ignored the same. Complainant submitted that it was gross negligence & deficiency in service from the supportive staff at the hospital. Being aggrieved by the negligent care and conduct of the Opposite Party, she filed the Consumer Complaint.

District forum had directed petitioner hospital to pay Rs 1,00,000 as compensation and Rs 10,000 towards the cost of legal proceedings.

State Commission dismissed the petitioner’s appeal with Rs 25,000 costs and further directing the hospital to pay Rs 3,51,000 compensation to the complainant.

Being aggrieved with the above orders, petitioner hospital approached this Commission.

In Commission’s view, the State Commission had passed a well-appraised reasoned order.

Coram opined that the present matter, prima facie does not fall strictly in medical negligence. Further elaborating more, Commission expressed that,

Wheelchairs are usually thought of a medical device that is meant to help those who are injured or have physical challenges; they can also be a source of injury when not properly used. Most wheelchair injuries that happen in a medical setting due to the negligence of medical staff and such could be easily prevented by a hospital or nursing home.

Further, Bench added that hospital authorities should make systemic improvements in their administration and their grievance redressal mechanism to ensure the patient’s safety and to maintain a good Doctor-Patient relationship.

In view of the above discussion, Commission held that nothing warrants interference with the impugned order of the State Commission in the exercise of the revisional jurisdiction of this Commission.[P.D. Hinduja National Hospital & Medical Research Centre v. Harsh Ashok Lal, 2021 SCC OnLine NCDRC 194, decided on 8-07-2021]


Advocates before the Commission:

For the Petitioner: Mr. Shekhar B. Prabhavalkar, Advocate

For the Respondent: In-person

Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission (NCDRC): The Division Bench of Anup K Thakur (Presiding Member) and Dr S.M. Kantikar (Member) while addressing the present matter of contributory negligence, expressed that:

“…grant of compensation to remedy the medical wrong/negligence is within the realm of law of torts.”

Complainant 1’s wife Complainant 2 during her pregnancy was under the care of OP 1. As soon as the labor pains started, Complainant 2 was admitted to OP 3—KMC and on conducting the delivery of the patient a healthy female baby was born.

Later it was informed to Complainant 1 that the baby was suffering from fever and added that the child needed ICU care and nothing major was there.

Complainant 1 requested the OP 2 to show the baby, but she was not willing to show it, however after a lot of persuasions the cloth was unwrapped from the baby which revealed a bandage put on lower portion of both the legs.

Upon further enquiries, OP 2 admitted that the baby sustained burn injuries because of a rod heater kept nearby. It was alleged that the entire staff went to attend another delivery and they forgot the instant baby, putting near the rod heater. The mother and the child were kept under treatment at the KMC for two months. The baby’s skin grafting of both legs was done using the mother’s skin.

On consulting at another Hospital, it was informed to the complainants that due to the thermal burn injuries the baby had lost three toes in the left and two toes in the right side because of dry gangrene.

The Complainant further submitted that the baby was under regular treatment for several years at Apollo Hospital, New Delhi and underwent several corrective operations & plastic surgery. The Complainants suffered mental agony and incurred huge expenditure on the treatment of their child due to the alleged medical negligence by the Opposite Parties.

Analysis, Law and Decision

Bench noted that the burns suffered by the baby were thermal burns due to dry heat from the hot air blower and during this time the baby was under the care of her grandmother. Hence complainant’s allegation that a rod heater was kept near the baby was dismissed.

Due to severe winter in the month of December, the hospital provided a hot air blower to keep the room sufficiently warm. Logically any prudent person or the Staff shall not put the blower facing towards the newborn. The evidence of staff nurse Ms Anis revealed that the blower was initially not directly facing the baby; however, after attending another delivery when she came back; noticed the blower was turned towards the baby and the grandmother was not present there.

In Commission’s opinion, the hospital staff as well as the patient’s attendant-grandmother both were responsible for the unfortunate mishap and in the charge sheet the charge under Section 338 of Penal Code, 1860 was found proved against the staff nurse Ms Anis.

While addressing the issue of maintainability o the complaint, Commission relied upon the decision of the Supreme Court in Spring Meadows Hospital v. Harjol Ahluwalia, (1998) 4 SCC 39 held that the parents of victim can file the complaint. The court acknowledged the importance of granting compensation to the parents of a victim of medical negligence in lieu of their acute mental agony and the lifelong care and attention they would have to give to the child.

No negligence on the part of OP 1 and 2 was found while conducting the uneventful delivery of the healthy baby and the care after the burns, however, the hospital –OP 3 was held liable vicariously.

It is settled law that the hospital is vicariously liable for the acts of its doctors in various decisions of Supreme Court in Achutrao Haribhau Khodwa v. State of Maharashtra, (1996) 2 SCC 634, Savita Garg v. National Heart Institute, (2004) 8 SCC 56, which also followed in Balram Prasad v. Kunal Saha, (2014) 1 SCC 384.

It is known that living with a disabled child can have profound effects on the entire family–parents, siblings, and other family members. Far-reaching effects associated with raising a disabled child are the time and financial costs, physical and emotional demands, healthcare expense and logistical complexities.

Contributory Negligence

Further, it was added that it would be pertinent to note that the newborn was in the custody of grandmother who failed in her duty of care towards the baby. According to the evidence of the staff nurse Ms Anis, the grandmother was not present in the room whereas the blower was facing towards the baby. Thus it can be inferred that no other than grandmother put the blower facing the baby. Thus, it was contributory negligence in the instant case.

Contributory negligence breaks the causal connection between the defendant’s negligence and plaintiff’s injury or loss and frequently pleaded in defense in the case of negligence. In the instant case, the affidavit of nurse Ms Anis established that the grandmother (complainants’ attendant) contributed to the burn injury of the newborn.

In view of the principle of restitution in integrum, Bench held KMC hospital to be vicariously liable for the medical negligence.

It was noted that 15 years have passed since the time the complaint was filed, with regard to quantum of award of compensation, bench relied upon the Supreme Court decisions in Malay Kumar Ganguly v. Sukumar Mukherjee, (2009) 9 SCC 221, V. Krishnakumar v. State of T.N., (2015) 9 SCC 388; Balram Prasad v. Kunal Saha, (2014) 1 SCC 384.

While concluding, it was held that a lump sum compensation to the sum of Rs 40 lakh shall be just and adequate. The contributory negligence is evident in the instant case, therefore the liability of KMC hospital shall restrict up to 50%. Accordingly, OP 3 Kanpur Medical Center Pvt. Ltd. was directed to pay Rs 20 lakh to the Complainants (parents of the child). [Mohit Srivastava v. Dr Neelam Mishra, 2021 SCC OnLine NCDRC 40, decided on 04-03-2021]

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: 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]

Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission (NCDRC): The Coram of Justice R.K. Agrawal (President) and Dr S.M. Kantikar (Member), upheld the State Commission’s Majority Order with regard to alleged medical negligence.

The instant revision petition was filed against the Order by the U.P. State Consumer Disputes Redressal Commission, Lucknow.

Complainant had visited the SS Hospital, Varanasi (OP 1) for pain in his left knee. OP 2 examined the patient and suggested Arthroscopic removal of the loose bodies. Complainant alleged that instead of Arthroscopy, OP 2 performed an open operation. Another X-Ray was taken, wherein it was found that the loose bodies were still present.

Later, the complainant underwent the Arthroscopy procedure at Mumbai by the hands of Dr Anant Joshi and gradually his left knee started functioning normally.

What was the complainant aggrieved of?

Aggrieved by the careless and negligent treatment of the OPs, the complainant filed the consumer complaint before the District Forum.

The District Forum allowed the complaint and ordered OPs to pay compensation of Rs 2,30,000 jointly and severally to the complainant.

Further, on an appeal being filed before the State Commission, OP’s were ordered to pay compensation of Rs 4,37,965 by the minority order but the majority order allowed the appeal and set aside the District Forum’s Order.

Again on being aggrieved by the State Commission’s Order, the instant revision petition was filed.

Analysis & Decision

Bench stated that it is an admitted fact that Dr S.C. Goel preferred open operation during the time of procedure instead of Arthroscopy.

As per the operative notes, it was the case of degenerative changes in the left knee joint and the four loose bodies were seen during Arthroscopy and their sizes were 1.5, 1.25, 1 & 1 cm. A large body of more than 5 mm size is difficult to be removed by Arthroscopy. Therefore, the Opposite Party No. 2 preferred open surgery. Moreover, admittedly, the patient before the operation was informed that if the Arthroscopy was not successful, open surgery would be done.

Hence, in view of the above, nothing amounts to negligence in the present matter.

The commission relied on the Supreme Court’s decision in Jacob Mathew, (2005) 6 SCC 1 wherein it was held that,

“When a patient dies or suffers some mishap, there is a tendency to blame the doctor for this. Things have gone wrong and, therefore, somebody must be punished for it. However, it is well known that even the best professionals, what to say of the average professional, sometimes have failures. A lawyer cannot win every case in his professional career but surely he cannot be penalized for losing a case provided he appeared in it and made his submissions.”

Coram held that Just because a person suffers a bad outcome from medical treatment, does not mean that they have an automatic right to sue for compensation.

A medical error is only considered “negligent” if the healthcare practitioner has failed to take “reasonable care”.

It was noted in the present case through the medical records of the patient that it was the patient’s misconception that despite the advice of Arthroscopy,  OP 2 performed open surgery.

Hence, the State Commission’s Order had no jurisdictional error, or a legal principle ignored or miscarriage of justice. [Anil Kumar Gupta v. Banaras Hindu University, 2020 SCC OnLine NCDRC 462, decided on 05-10-2020]

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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Case BriefsHigh Courts

Punjab and Haryana High Court: In the instant appeal, the question before the Court was that whether the appellant can be attributed medical negligence merely because she did not explain to the respondent that at the time of delivery of child, uterus is of size of the child and the tubes get enlarged as well, and go back to their normal size after delivery; and during regress, the tubes are likely to slip thereby exposing chance of further pregnancy. Examining the facts, evidences adduced in the matter and the findings of the Trial Court, Bench of Rekha Mittal, J., held that the lower Courts attributing negligence to the appellant and fastening liability for payment of damages suffer from perversity as the respondent- plaintiff did not adduce any evidence or expert opinion which proves or explains that it not advisable to perform tubectomy along with caesarean section. Therefore it is difficult to sustain the findings of the lower Courts that tubectomy operation failed because of negligence attributable to the doctor. 

As per the facts, during the birth of the respondent-plaintiff’s 4th child, the appellant performed the tubectomy operation. The respondent- plaintiff alleged that she was assured by the appellant that the after tubectomy operation, she will never conceive in future. However, the respondent conceived again. The respondent alleged that had full assurance not been given by the appellant, she would not have undergone tubectomy operation. The respondent claimed that the post- operation pregnancy was due to the professional negligence of the appellant. The respondent further stated that her 5th pregnancy caused a great deal mental agony and mental/bodily pain and sufferings while giving birth to another child. Sumiti Arora appearing for the respondent pointed out the findings of the Trial Court according to which the appellant was found to be negligent because as an expert it was obligatory upon her to advise the respondent-plaintiff to wait for some time more to get the tubectomy operation done. Appearing for the appellant, T.N. Gupta submitted that the respondent did not adduce any evidence to suggest that the appellant was negligent in conducting tubectomy operation simultaneously with delivery of child through caesarean section. It was further argued that there is no medical text/opinion which suggests or supports the theory that tubectomy operation should not have been carried out at the time of delivery or the same was required to be carried out after the delivery.

Perusing the facts of the case, the Court observed the Supreme Court decision in State of Punjab v. Shiv Ram, (2005) 7 SCC 1, wherein the Court, in order to decide the case, referred to certain authoritative texts dealing with percentage of failure of sterilization conducted through different methods. The Court noted that in order to support contentions, the respondent did not refer to any medical text or opinion much less expert opinion of a professional in gynaecology/sterilization that it is not advised to perform tubectomy along with caesarean section. It was further noted that there is no evidence suggesting that sterilization, in the instant case, has failed merely because it was performed at the time of delivery. The Court also took notice of the fact that the respondent had admitted that the operation was conducted properly and there was no negligence on the part of surgeon while performing the operation. Taking a cumulative view of the facts, the Court held that findings of the lower Courts are unsustainable, thereby allowing the instant appeal and set aside the judgment and decrees passed by the lower Courts. [Dr Sushma Chawla v. Jasbir Kaur, 2020 SCC OnLine P&H 1000 , decided on 08-07-2020]

Case BriefsCOVID 19High Courts

Calcutta High Court: Debangsu Basak, J., directed the State to videograph the Post-Mortem of the petitioners son suspected to have died due to COVID-19 and alleged to be subjected to medical negligence.

Medical Negligence

Senior Advocate, Bikash Ranjan Bhattacharya appearing on behalf of the petitioners submitted that petitioners son died due to medical negligence.

Two hospitals had refused for admission to the deceased son of petitioners and later when he was admitted at Calcutta Medical college on the same day he lost his life.

Petitioners filed a police complaint and submitted that they should be allowed to be present for their son’s post mortem and later the mortal remains of the son be made over to them for performing the last rites.

Advocate General appearing for the State submitted that police authorities are investigating and thus petitioners cannot be allowed to be present in the Post Mortem. Authorities will follow the ICMR guidelines in conducting the Post Mortem and also in dealing with the dead-body.

When the deceased was taken for treatment to a Nursing Home, COVID Test was conducted, wherein he was found COVID-19 positive, after which being taken to other clinical establishments he was refused from being admitted.

Bench stated that given the fact that the State is not averse to conducting a Post Mortem it would be appropriate to permit the State Authorities to conduct Post mortem on the deceased and videograph the same.

Upon Post Mortem being completed, the State Authorities will permit the petitioners to see mortal remains of the son. The State Authorities will also permit the petitioners to undertake such religious rituals as are permitted by ICMR guidelines on the deceased.

Given the nature of the pandemic presently, it would be prudent to err in favour of caution, if one is required to err.

Mortal remains & Dead-body Management

Petitioners should be allowed to perform the last rites in accordance with the COVID-19 guidelines on dead-body management.

The State is not averse to the petitioners performing such last rites. The State does not want the petitioners to accompany the dead-body to the crematorium since the crematorium, according to the State is a designated COVID-19 crematorium and that State requires presence of persons at the minimum.

Adding to its conclusion, Court stated that, the State will allow the petitioners to view the mortal remains of the son after the Post Mortem and to perform the last rites at a place to be designated by the State.

It is clarified that the Court did not decide the issue as to whether the deceased died due to COVID-19 or not.[Srabani Chatterjee v. State of W.B., 2020 SCC OnLine Cal 1206 , decided on 14-07-2020]

Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Redressal Commission (NCDRC): Dr S.M. Kantikar (Presiding Member) addressed a matter wherein medical negligence was been alleged.

OP — Dr. Vinod Bele has been alleged to caused medical negligence resulting to radial nerve injury due to negligent administration of injection in the arm of the patient.

Previously, district forum had held OP liable for negligence after which OP appealed in the State Commission wherein it was allowed and order of District Forum was set aside.

The instant revision petition was filed under Section 21(b) of the Consumer Act, 1986 by the aggrieved complainant.

OP had denied any negligence in the treatment of the patient.

Complainant was suffering from arthiritis since 2-3 months she was under treatment of OP till September 2001. Nothing on record was found which proved that OP administered injection. Also it has been addd that OP referred the complainant to Kasturba Hospital where sh was treated for arthiritis on OPD basis.

It is further to note that, the patient did not approach OP immediately for the alleged suffering of “Radial Nerve Palsy” after taking the alleged injection on 8th January, 2001.

Bench also noted that for 4 months she was taking treatment and in result there was positive evidence of recovery but thereafter she did not come in the hospital for follow up examination and thus she suffered disability.

Complainant failed to produce any cogent evidence or any expert opinion that the OP treated the patient negligently and caused post injection radial nerve palsy.

Thus, in tribunal’s opinion, OP acted with reasonable care. Disability was due to the long standing arthiritis but not due to nerve palsy as alleged.

“No cure is not negligence” — despite reasonable treatment if there is no improvement.

Hence in view of the above, revision petition was dismissed. [Sunandabai Kisanji Dhole v. Dr Vinod Bele, 2020 SCC OnLine NCDRC 126 , decided on 22-06-2020]

Hot Off The PressNews

Supreme Court: A 3-judge bench of SA Bobde, CJ and BR Gavai and Surya Kant, JJ has sought response from the Rajasthan government on a plea seeking probe into the death of over 100 infants at a hospital in Kota recently.

The Court issued a notice to the state government on a plea filed by noted doctor K K Aggarwal and social worker B Mishra seeking probe into the death of new-born babies due to lack of equipment at a government hospital in Kota.

Over 100 infants had died in the Kota hospital recently.

(Source: PTI)

Case BriefsHigh Courts

Allahabad High Court: A Division Bench of Pradeep Singh Baghel and Piyush Agarwal, JJ. was hearing a PIL inviting the attention of the court to the casual approach of State functionaries with the menace of dengue fever.

The petitioner, who was also the counsel, in this case, wrote a letter and requested the court to be treated as Public Interest Litigation. Petitioner’s son was bought to Swaroop Rani (S.R.N) Medical College, Allahabad where he was diagnosed with viral fever. The diagnosis was made after doing a medical test which clearly showed the symptoms of dengue fever. Without studying the medical report treatment of patient began. This clearly showed the gross medical negligence from the side of doctors. When the condition of patient became critical he was shifted to S.G.P.G.I Lucknow where unfortunately the patient died and the cause of death was dengue.

In enquiry report, it was mentioned that the patient was hemodynamically unstable but from the medical report, it was shown that the wrong diagnosis was made on the part of local doctor and from S.R.N Medical College. 

The Court, in this case, considered medical negligence was on part of doctor of S.R.N Medical College and the circumstances in which the petitioner lost his young son. Petitioner was compensated with 25 lakhs from District Magistrate. In the same manner, the Court also ordered the State Government to release sufficient funds for Government Hospitals to provide sufficient dialysis units. Apart from this court ordered strict implementation of the Uttar Pradesh Preventive and Control of Malaria, Dengue, Kala-azar and Vector Borne Disease Regulations, 2016 and also separate blood units to be set for dengue patients. The Chief Medical Officer was directed to ensure the implementation of directions issued by court.

With this direction, public interest litigation is disposed of. [B.P Mishra v. State of U.P, PIL No 53904 of 2016, decided on 14-11-2019]

Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission (NCDRC): Justice V.K. Jain (Presiding Member), while disposing of the present application with respect to negligence of doctors, noted a very significant point, that,

“A doctor writing a prescription advised by any doctor cannot be said to be negligent only on account of his writing such a prescription.”

In the present case husband of the complainant visited OP-2 (Dr Sandeep Agarwal) in Sahara Hospital, Lucknow. Later he was admitted there for a day; during his stay at the hospital his pathology tests were done and it was found that his serum creatinine was found to be excessive from what is to be in the range prescribed.

No investigations or treatment for monitoring and management of high creatinine which was found in his reports indicating kidney disease was advised to him during the time of discharge and nor was he asked to consult the Nephrologist for the said purpose. On being admitted again to the hospital, he was seen by OP-2 as well as OP-3 (Dr Muffazal Ahmed). OP-3 had informed the family of the deceased and the deceased as well of suffering from the end-stage renal disease for which he required dialysis.

Further, it was stated that the complainant was allegedly given iron injection during his stay at the hospital though such injection according to the complainant was contra indicated in case of a person suffering from kidney disease. He was also prescribed iron injection without checking his ferritin level.

Complainant also stated that medicine Metformin was advised to the deceased which was again contra indicated in his case. Medicine named Liofen was also prescribed to him which was also contra indicated in the deceased’s case.

In view of the above, complainant alleged negligence on the part of OPs in the deceased’s treatment. Complainant thus approached the Commission seeking compensation for damages.

The above complaint has been resisted by the opposite parties.

Case of OPs is that they thought that the serum creatinine level might have increased due to dehydration. The discharge summary, however, does not record any such assumption. Even if the opposite party / treating doctor was of the opinion that high creatinine level could be due to dehydration, the least expected from him was to note it down in the discharge summary and advise the patient to get his creatinine level checked regularly, since the said level would have come down in due course had the same been caused by dehydration. Considering the high level of creatinine the OP-2 ought to have suggested consultation by a nephrologist to confirm the cause of the increase in serum creatinine. Therefore, it would be difficult to say that the OP-2 was negligent in the treatment of the complainant, he had not given any treatment or advise to him for the monitoring, management and treatment of the high level of serum creatinine found nor having advised him to consult a Nephrologist during the course of his treatment.

It is to be noted that ‘Encicarb’ was advised to the deceased to be infused daily for two hours for two days after a detailed discussion.

Treating doctor should first get the TSAT and Ferritin level of the patient checked before initiating ESA therapy. Admittedly, ferritin and TSAT of the complainant were not got checked soon before 18.3.2014 when intravenous iron Encicarb was advised to him. His ferritin levels were last checked on 10.12.2013 and more than three months had already expired by the time iron injection encicarb was advised to him on 18.3.2014. In view of the guidelines issued by Indian Society of Nephrology advising the injection Encicarb on 18.3.2014, without checking TSAT and ferritin was an act of negligence on the part of the opposite party No.3.

Tribunal on noting the material submitted by the complainant and considering the facts and circumstances of the case found OP-2 and 3 to be negligent in the treatment of complainant who died during the pendency of the complaint. Since OP-2 and 3 were working with OP-1, the said opposite party is vicariously liable for the negligent acts of OPs 2 & 3.

The next question for consideration was with respect to the quantum of compensation. Though the complainants have claimed compensation running into crores of rupees, the facts, and circumstances of the case do not justify such a huge and fanciful compensation. The complainant was alive when this complaint was instituted and he died during the pendency of this complaint. There is no evidence to prove that the complainant died on account of the deficiency attributed to the opposite parties in his treatment. His creatinine level was pretty high even at the time it was checked in Sahara Hospital.

Thus, Complainant was entitled to an aggregate of Rs 30 lakhs. [Gyan Mishra v. Sahara India medical Institute Ltd., 2019 SCC OnLine NCDRC 333, decided on 07-11-2019]

Case BriefsHigh Courts

Karnataka High Court: Alok Aradhe, J. allowed a petition praying for quashing an order whereby the Principal Civil Judge took cognizance of an alleged negligent act against a doctor; on the grounds of violation of the due process of law and action being barred by limitation.

The petitioner, a medical practitioner, on being consulted by the respondent who was a chronic tobacco chewer having difficulty in opening his mouth, administered treatment to the respondent for a period of 13 days. Following which, the respondent allegedly encountered side effects of medicines and developed a puss formation in the back jaw. Three years later, the respondent filed a complaint against the petitioner for offences under Sections 284 and 326 of the Penal Code, 1860. The same was taken cognizance of and the petitioner inter alia sought quashing of proceedings. Hence, this petition.

Issue: Whether cognizance of a complaint about offence constituting medical negligence can be taken without referring to an expert’s opinion?

The petitioner was represented by Bharath Kumar who contested that taking cognizance for offence as alleged was in violation of the prescribed process of law inasmuch as no expert opinion was obtained before doing so. Reliance was placed on Martin F. D’Souza v. Mohd. Ishfaq, (2009) 3 SCC 1. Further, it was contested that limitation for one year was overdue to which the complaint could not have been admitted. else the same would be impermissible in law. The counsel for the respondent, however, did not concur with such claims and supported the passed order.

The Court’s conclusion relied on the two-fold argument presented. It relied on the Martin F D’Souza case and held that taking cognizance of offence against a medical practitioner without referring to an opinion of an expert doctor is impermissible. It was also held that and the complaint filed by the respondent was barred by limitation as it was filed beyond the statutorily prescribed period of one year.

In light of the aforesaid rationale, the Court allowed the petition and quashed the impugned order. [Prabhakar v. K. Sigbathulla, Criminal Petition No. 2678 of 2017, decided on 31-05-2019]

Case BriefsSupreme Court

Supreme Court: In a case of medical negligence where a minor surgery resulted in amputating a woman’s arm, the bench of Abhay Manohar Sapre and Dinesh Maheshwari, JJ Rs. 10 Lakhs towards compensation, over and above the amount awarded by the Himachal Pradesh State Consumer Disputes Redressal Commission and the National Consumer Disputes Redressal Commission. The Court said that such granting of reasonability higher amount of compensation was necessary to serve dual purposes:

  • to provide some succour and support to the appellant against the hardship and disadvantage due to amputation of right arm; and
  • to send the message to the professionals that their responsiveness and diligence has to be equi-balanced for all their consumers and all the human beings deserve to be treated with equal respect and sensitivity.

The Woman brought to the Court’s notice that she continuously suffered excruciating pain during the entire surgical procedure and despite bringing the fact to the knowledge of the medical practitioners during and after the procedure, no measures were taken to redress and reduce the discomfort suffered by her.  Calling it ‘an uncomfortable fact’, the Court said that not attending her immediately and snubbing her with the retort that ‘the people from hilly areas make unnecessary noise’, obviously, added insult to the injury and were least expected of the professionals on public duties.

Stating that the National Commission had been too restrictive in award of compensation, the Court said:

“Ordinarily, the general damages towards pain and suffering as also loss of amenities of life deserve to be considered uniformly for the human beings and the award of compensation cannot go restrictive when the victim is coming from a poor and rural background; rather, in a given case like that of the appellant, such a background of the victim may guide the adjudicatory process towards reasonably higher amount of compensation.”

The National Commission gad quantified the amount of compensation only at Rs. 2,00,000.

[Shoda Devi v. DDU/Ripon Hospital Shimla, 2019 SCC OnLine SC 334, decided on 07.03.2019]

Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission (NCDRC): A Division Bench of S.M. Kantikar and Dinesh Singh, Members, allowed an appeal filed against the order of Delhi State Consumer Disputes Redressal Commission whereby the appellant’s petition was dismissed at the stage of maintainability itself.

The appellant had filed a complaint against the respondents for medical negligence. One of the respondents had prescribed a medicine for appellant’s husband; however, the pharmacist (OP-2) gave the wrong medicine. The appellant’s husband died because of taking the wrong medicine.

The main issue that arose before the Commission was whether the present dispute amounts to a consumer dispute and hence whether it can be adjudicated upon under the provisions of Consumer Protection Act, 1986.

The Commission observed that the State Commission had cited the case of Bright Transport Co. Ltd. v. Sangli Sehkari Bank Ltd., II (2012) CPJ 151 (NC) wherein it was held that complaints which are based on allegations of fraud, forgery, etc. and trial of which would require voluminous evidence and consideration are not to be entertained by the consumer fora. However, in the instant case the appellant had neither alleged fraud nor did she allege forgery on the part of respondents.

The Commission held that it was a case of medical negligence and deficiency in services and it does not require recording of voluminous evidence and consideration, as may make the adjudication of this case unfeasible or prescribed in consumer fora. The allegations of medical negligence and deficiency of services is a complaint within the meaning of Section 2(1)(c) of the 1986 Act and would convert into a “consumer dispute” within the meaning of Section 2(1)(e) if the opposite parties dispute or deny the allegations contained in the complaint. [Vimla v. Ashwani Gupta, First Appeal No. 1062 of 2018, order dated 05-08-2018]

Case BriefsSupreme Court

“The subject of negligence in the context of medical profession necessarily calls for treatment with a difference.”

-CJ R.C. Lahoti (as he then was)

Supreme Court: The Bench comprising of Abhay Manohar Sapre and Vineet Saran, JJ. in a case of “medical negligence” as alleged by the respondents in the present case allowed the appeal and set aside the impugned order passed by the National Consumer Dispute Redressal Commission on no merits being laid down in favour of alleged medical negligence.

The present appeal was filed in consequence of the impugned order passed by the National Commission. The facts and points to be noted in the present case were that the appellant was a doctor with expertise in gall bladder surgery and he was alleged by Respondent 1 to have conducted a gall bladder surgery on Respondent 1 without her consent, which she had claimed to be given only for Laparoscopic surgery. On the grounds as mentioned above, Respondent 1 approached the State Commission claiming negligence on the part of the appellant as right after the year 1996, in 1997, the respondent had to get admitted to a hospital in Delhi and suffered from various other ailments which occurred due to the negligence on the part of appellant giving reference to the conventional gall bladder surgery which she had not agreed to. On refusal of any compensation from the State Commission, Respondent 1 approached the National Commission which awarded her compensation setting aside the State Commission’s order.

The above-stated matrix of contentions and a brief history of the present case led the appellant to file an appeal by special leave to appeal.

The Supreme Court, on perusal of the facts, evidence and placing reliance on the Bolam’s Test as suggested in the case of Bolam v. Friern Hospital Management Committee, [1957] 1 WLR 582, in which it was held that 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 Apex Court concluded its decision while briefing out some important pointers of the case in order to deliver justice and clarity to comprehend the concept of medical negligence.

Therefore, the Court stated that the appellant-doctor was a qualified senior doctor with requisite knowledge and skill to perform the surgery of gall bladder. The said step of conducting the gall bladder surgery while conducting the laparoscopic surgery was taken due to the condition observed while doing the latter. On the occurrence of such emergent situation, the appellant took the consent of the Respondent 1’s husband on explaining him the whole situation. Further, the Court observed that Clause 4 of the Consent Form which was duly signed by Respondent 1, empowered the doctor to perform additional operation or procedure in the event of emergency.

Hence, it was not an unauthorized act of the appellant and he could legally perform on the basis of above-mentioned Clause 4 of the Consent Form on which Respondent 1 had duly signed. Adding to the above opinion of the Bench, it also stated that no medical evidence of any expert was adduced to prove the allegation of negligence by Respondent 1. The appeal was allowed by restoring the State Commission’s order and setting aside the National Commission’s order on finding no merits in their decision. [S.K. Jhunjhunwala v. Dhanwanti Kumar,2018 SCC OnLine SC 1721, decided on 01-10-2018]

Case BriefsHigh Courts

Tripura High Court: A writ petition for the claim of compensation in a medical negligence case was filed before a Single Judge Bench comprising of Ajay Rastogi, CJ.

Facts of the case are that the petitioner is the father of the deceased child who incurred a head injury. The child was shifted immediately to a hospital but after three days after the accident, he was moved to AGMC & G.B.P. Hospital, where he succumbed to his injuries. Petitioner alleged medical negligence in criminal complaint after which FIR was registered. For purpose of examining the same, a committee was constituted by the order of Director of Health Services. The report of committee examined the matter and concluded that treatment given to the patient was in accordance with the existing protocol and no negligence was found on part of the doctors involved in the treatment of deceased.

 The High Court was of the view that under limited scope of judicial review under Article 226 of the Constitution of India it is not possible to examine the allegation of medical negligence as the parties have not yet provided evidence in respect of their respective claims. Therefore, Court observed the quantification of compensation to be out of their scope due to the above reasons and the writ petition was dismissed. [Krishna Sarkar v. Government of Tripura,2018 SCC OnLine Tri 209, Order dated 13-09-2018]