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, the 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, Consumer Case No. 52 of 2006, 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]

Case BriefsHigh Courts

Delhi High Court: A Single Judge Bench comprising of Valmiki Mehta, J., allowed an appeal filed against the judgment of the trial court whereby the appellant Hospital was held liable for medical negligence.

Brief facts of the case are that the respondent-plaintiff underwent a sterilization operation in Lok Nayak Hospital. However, the said operation was not successful and the respondent conceived again which resulted in the birth of her seventh child. The respondent sued the appellant for not having taken reasonable care while operating her. The trial court, finding the appellant guilty of medical negligence, decreed the respondent’s recovery suit for a sum of Rs 2,20,000. Aggrieved thus, the present appeal was filed.

The High Court did not find the judgment impugned to be sustainable. It was observed that medically there is never a 100% chance of success in sterilization operations. The fact that the operation was not successful, that by itself could not be a reason to hold the appellant and its doctors guilty of negligence. There were no specific allegations against the doctors for committing negligence while conducting the operation; and in absence of the same, the appellant could not be held liable in fact or in law. Moreover, the respondent, before the operation, had signed the forms that clearly stated that the sterilization process is not always successful and there are some chances of failure, and if the operation is unsuccessful, the appellant or the doctor concerned will not be liable. In light of the discussion as mentioned herein, the Court allowed the appeal and set aside the judgment impugned. [Lok Nayak Hospital v. Prema,2018 SCC OnLine Del 10334, dated 06-08-2018]

Case BriefsHigh Courts

High Court of J&K at Jammu: A Bench comprising of M.K. Hanjura J., recently dealt with a petition wherein the petitioner primarily seeked the quashment of the order passed by the Chief Judicial Magistrate in the case wherein an FIR had been filed under Section 304-A of the Ranbir Penal Code against the petitioner and investigation was asked to be undertaken without considering the medical opinion of a team of experts.

The facts of the case are that the petitioner, a B-Grade Surgeon Specialist in a Government Hospital at Sarwal and a lecturer at the Surgery Department of the Government Medical College, Jammu, had treated upon Jai Kumar (patient in question) at the Government Hospital Sarwal, for Gallbladder stones. Following the operation for removal of the stones, owing to the patient complaining of discharge from the drain that was inserted into him during surgery, he was referred to the Government Medical College Jammu for specialized treatment on the 19/1/2013. But on 23/1/2013, he left the hospital despite not being cleared for discharge since the treatment was ongoing. Following this, the patient admitted himself to another hospital wherein, according to a report on the 11/2/2013, he was found to be fit and hence, discharged. 4 days later, the patient passed away. Despite this, the petitioner was made aware that the patient’s father had filed a complaint before the Director of Health Department alleging negligence on the petitioner’s part. An experts’ committee was set up to investigate the complaint which came to the conclusion that even though an injury had occurred to the Bile Duct which was common in such cases, the petitioner had taken appropriate care pre and post operation and had followed the standard protocols of treatment for saving the life of the patient. Despite the aforesaid observation made by the experts’ committee, the complainant went ahead and filed a criminal complaint before the CJM alleging medical negligence on the basis of false and frivolous allegations and the petitioner was not given notice of the criminal complaint until after the order had been passed consequent to which the SHO was directed to conduct a preliminary inquiry in the matter and to get opinions from a Board of Doctors. Following this, despite the medical board giving a unanimous opinion of no medical negligence having occurred in the case, the CJM directed the SHO to file an FIR under Sec. 304-A of the RPC which was simply based on the opinion of a private doctor. Besides, the petitioner was also made aware of the FIR through a news report in the local newspaper and subsequent to which he filed the petition under Sec. 561-A of the Cr.P.C.

The Court pointed out to cases like Ghulam Ahmad Wani v. State of J&K and Dr. Mufti Mehmood Ahmad Farooqi v. State of J&K wherein it was held that negligence would only be proved if it could be shown authoritatively that the acts of omission and commission were such that no medical professional in his ordinary senses and prudence would have done or failed to do. The Court then referred to Dr. Suresh Gupta v. Govt. of N.C.T. of Delhi wherein the Court had held that for conviction of a doctor for alleged criminal offence, the standard should be proof of recklessness and deliberate wrong doing i.e. a higher degree of morally blameworthy conduct. To prosecute a medical professional for negligence under criminal law it would need to 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 Court applied the ratio of law laid down in the above-mentioned cases and held that a simple lack of care, an error of judgment or an accident cannot form a proof of the negligence on the part of a medical professional. In a case, where a medical professional is accused of gross negligence, the Investigating Officer and the private complainants cannot be supposed to have the knowledge of medical science which will give them the stick to determine whether the act attributed to the accused (medical professional), does or does not amount to rash or negligent act under the provisions of Section 304(A) RPC. It also acknowledged that resorting to registering cases against medical practitioners under Sec. 304 of the RPC on the mere asking by private complainants will also deter medical professionals from working since the threat of criminal prosecution will always loom over their heads. The Court noted that in Jacob Mathew v. State of Punjab, the Supreme Court had held that a private complaint may not be entertained unless the complainant has produced, prima facie, evidence before the Court in the form a credible opinion given by another competent doctor to support the charge of rashness or negligence on the part of the accused doctor and that such an opinion should come from someone who will give an impartial and unbiased opinion applying the Bolam’s test to the facts collected in the investigation. Thus, keeping in mind the precedents, the Court thought it fit to allow the petitioner’s petition and hence, directed the police to quash the FIR. [Dr. Shyam Kumar Gupta v. State;  2017 SCC OnLine J&K 815, decided on 26.12.2017]

Case BriefsHigh Courts

Orissa High Court: While hearing a case on medical negligence. S. K. Sahoo, J. started his judgment with a famous quote by author George Bernard Shaw- “We have not lost faith, but we have transferred it from God to medical profession.” Further emphasizing upon the value of doctor in a common man’s life, the confidence he has in a doctor and the duty of care that the doctor owes towards people because of his profession, he stated that a doctor is treated like Dhanvantari- Physician of gods and the God of Ayurveda.

The petitioner- a doctor filed a revision petition against the impugned order by SDJM in taking cognizance of offence under S. 304 Part-II of the Penal Code and issuance of process against him. The prosecution had alleged that the doctor was negligent in treating the pregnant wife of complainant and while her delivery. After due course of investigation and examination of witnesses, the investigating officer came to the conclusion that the deceased died due to the act of the petitioner who was the owner of Women’s Care Nursing Home. He concluded that the doctor though had no intention of causing death of the deceased but had sufficient knowledge that such bodily injury i.e. rupture of uterus caused due to pulling out the unborn baby forcefully by means of forceps was enough to accelerate the death and cause death in ordinary course of nature. Also, no proper measures were taken by him to take out the baby from the womb when it was alive.

The investigating officer was also of the opinion that the petitioner knowingly kept the deceased in the Nursing Home with assurance to the complainant for normal delivery. The counsel for the petitioner-accused contended that no post-mortem had been conducted on the dead body of the deceased to ascertain the truth of the accusation. It was contended that when the deceased was brought to the Nursing Home, she was diagnosed as a case of Abruptio Placentae causing concealed hemorrhage and the condition of the deceased was very low.

Ascertaining the situation objectively, the Judge came to the conclusion that the doctor prima facie appeared to have not exercised the skill with reasonable competence and did not adopt the practice acceptable to the medical profession of that day. The Court went on to explain that it it was the duty of the petitioner to explain the deceased or at least the complainant, chances of success and the risk of failure of the suggested treatment and inform them about the foreseeable risks and possible negative effects of the treatment keeping in mind the patient’s specific condition.

The Court referring to Alister Anthony Pareira v. State of Maharashtra,  (2012) 2 SCC 648 held that there were no prima facie materials for commission of an offence under Section 304 Part II IPC. However, the materials were sufficient under S. 304-A IPC. The petition was disposed of with the direction to trial court that it was free to assess the evidence which would come on record during trial. [Dr. Subas Chandra Dash v. State of Orissa, 2017 SCC OnLine Ori 132, decided on 27.02.2017]

 

Tribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission (NCDRC): “The doctor/patient relationship is at a crossroads. Some patients want the doctor calling all the shots, deciding the best treatment path to follow. Patients miss the trust and warmth found in the personal bond with a caring, competent physician. Boundaries in the doctor-patient relationship is an important concept to help health professionals navigate the complex and sometimes difficult experience between patient and doctor where intimacy and power must be balanced in the direction of benefiting patients,” observed NCDRC while dismissing the charges of medical negligence leveled against a doctor. The Commission was hearing an appeal filed by a person, whose father had appendicitis, and after the operation was performed by the Respondent Doctor, the patient developed fecal fistula, subsequently suffered septicemia and thereafter passed away. Alleging medical negligence, appellant approached State Consumer Commission and argued that his father had appendicitis, which could be treated by medicines. Also the operation was not performed properly by the Respondent Doctor, due to which the patient developed fecal fistula and died. State Commission dismissed the complaint and feeling aggrieved, appellant filed appeal before NCDRC. After perusing the medical history of the patient and hearing both the parties, NCDRC observed that patient was presented with acute appendicitis and high fever. The patient’s blood sugar at the time of admission was also very high. As the patient was diabetic; it was the additional cause for poor healing of wound. The Commission also went through medical literature and several books on surgery and noted that when the appendix is perforated or gangrenous with peri-appendicitis, the frequency of septic complications reaches as much as 30% which includes wound infection, intra-abdominal abscess, fistula formation, and localized or diffused peritonitis. “The OP (Doctor) took utmost care and operated upon him as an emergency. The fecal fistula developed due to patient’s health condition. The patient was highly diabetic with high blood urea and creatinine levels. Further, OP (Doctor) took proper care of the fistula by providing regular dressing and antibiotics to the patient. The death occurred due to multiple factors. We do not find any negligence either during the appendicectomy surgery or during treatment of fecal fistula. Therefore the appeal is hereby dismissed,” noted the Commission while dismissing the appeal. Bibekananda Panigrahi v. Prime Hospitals Ltd., 2015 SCC OnLine NCDRC 1404, decided on 3-8-2015