Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission, New Delhi (NCDRC): While addressing a medical negligence case, the Coram of Dr S.M. Kantikar (Presiding Member) and Binoy Kumar, Member, observed that, Negligence per se is not a separate cause of action from negligence suits. Negligence per se, however, assumes the duty because of public policy or law. “Negligence per se” is defined by the legal field as “negligence due to the violation of a public duty under a law that defines the failure of care required to constitute negligence. Negligence per se may also be declared when a person does or omits to do something which is so beyond reasonable behaviour standards that it is negligent on its face.”

An appeal was filed against the State Commission’s order wherein it had granted Rs 20 lakhs without interest which was much less than reasonable and just compensation.

The three grounds for the present appeal were:

(A) Enhancement of the compensation from Rs. 20,00,000/- to Rs. 50,00,000/-.

(B) The interest to be awarded on the amount of compensation either from the date of surgery (06.02.2006) or from filing of the complaint before the State Commission, New Delhi (2007)

(C) To Hold the doctor guilty and impose fine/penalty upon him.

Analysis, Law and Decision

In Commission’s opinion, the impugned order in both the appeals was unsustainable and in the present case, the final arguments were heard by two members –Judicial and Administrative but due to the retirement of the Administrative Member, probably to avoid a fresh hearing in the case, the Judicial Member thought it was advisable to pronounce the final order himself.

In the present case, the final arguments in the Complaint were heard by two Members and, therefore, only those two Members were competent to pronounce the order, and not by the Member sitting singly. This is the fundamental rule, which cannot be sacrificed at the altar of administrative convenience. 

Coram set aside the order challenged as the same was illegal.

After the remand, the matter was heard, and the State Commission awarded Rs. 20 lakh compensation with Rs.1 lakh as cost of litigation to the Complainants.

Commission, noted that,

further note that, the DMC has made strong observations on the patient management in G.M. Modi Hospital as it was in very lackadaisical manner. The hospital had inadequate manpower, lack of coordination, no proper record keeping of in-ward and outward (dispatch) of specimen of histo-path. The operative findings and the follow-up advice were not recorded properly. Thus, the hospital ignored all treatment protocols and the surgeon blandly violated the standard norms. Though, in this case the operated specimen was handed over to the patient’s relative for HPE examination but Dr. Panigrahi did not bother to see/know about the report. However, the patient relatives denied about receipt of any specimen. As per the NABH standard operating procedure (SOP), it is the responsibility of operating surgeon to send the surgical specimen for HPE. It is unfortunate that subsequently the patient developed metastasis in liver and other parts of body and she lost the chance of early cancer therapy. In our considered view it was ‘negligence per se’ of the hospital and the treating surgeon Dr.Panigrahi. The DMC further observed that only CBD exploration was done to claim money from CGHS though admittedly laparoscopic small bowel resection was not done but it was mentioned in discharge summery. The DMC removed the name of Dr. A.K. Panigrahi for 12 weeks from the State Medical register.

Coram expressed that, in negligence cases, one must prove that there was a duty, that duty was breached, and the breach of that duty caused damages.

Compensation in Medical Negligence Cases

It was noted by the Commission that, in the present case, the Surgeon failed in his duty of care, and it was not a reasonable standard of practice, thus he was negligent.

The State Commission ignored the medical negligence of the Surgeon; and for the qualitative change awarded Rs 20 lakh as compensation.

Hence, in Commission’s opinion, the medical negligence was attributed to the doctor and hospital, and the Complainant deserved the compensation. Therefore, the compensation was modified, that Rs 20 lakhs have to be paid just and fair, and therefore the view taken by the State Commission for the need of qualitative change in the functioning of the hospital was endorsed and the hospital shall pay Rs 5 lakhs more to the Complainant.

Since it has been 1 ½ decade since the incident occurred, the complainant deserves an interest on the total quantum of the award.

Conclusion

The impugned Order was modified to the extent that the treating Surgeon was liable for medical negligence; as well, the hospital was vicariously liable. The hospital needed qualitative change and systemic improvement also. Therefore, on the basis of the foregoing discussion, OP 1 and 2 shall pay total compensation of Rs 25 lakhs with interest of 6% pa and cost of litigation shall remain at Rs 1 lakh only. [Vishnu Priya Giri v. G.M. Modi Hospital Research Centre for Medical Sciences, FA No. 552 of 2019, decided on 13-5-2022]


Advocates before the Commission:

For the Appellant: Mr. Jalaj Agarwal, Advocate Mr. Alok Chaudhary, Advocate with Appellant in person

For the Respondent: Mr. Sanjeev Kumar Dubey, Sr. Advocate with Mr. Rajmangal Kumar, Advocate for R-1

Ms. Mary Mitzy, Advocate for R-2

Case BriefsTribunals/Commissions/Regulatory Bodies

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

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

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

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

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

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

Analysis and Decision

Commission held that there was negligence during outlet forceps delivery.

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

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

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

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

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


Advocates before the Court:

Appeared at the time of arguments through Video Conferencing

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

For the Respondents : Mr. Mohammad Sajid, Advocate

Case BriefsTribunals/Commissions/Regulatory Bodies

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

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

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

Background


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

What was the core issue?


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

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

Analysis and Decision


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

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

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

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

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

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

Case BriefsHigh Courts

Kerala High Court: N. Nagaresh, J., decided whether medical service would fall within the ambit of Section 2(42) of the Consumer Protection Act, 2019 unless of course the service is free of charge or is under a contract of personal service.

Background

Doctors practising Modern Medicine in Kannur filed the present petition seeking to quash the orders of District and State Consumer Disputes Redressal Commissions, as sans jurisdiction and hence illegal.

They sought to declare that the Consumer Fora under the Consumer Protection Act, 2019 does not have jurisdiction to take cognizance of complaints in respect of medical negligence and deficiency in medical service as a medical profession and practice and practice does not come within the purview of term ‘service’ defined under Section 2(42) of the Consumer Protection Act, 2019.

Contention

Senior Counsel assisted by the counsel for the petitioners argued that the medical service/practice is not included in the illustrations in the inclusive definition of the term ‘service’ under Section 2(42) of the Consumer Protection Act, 2019 and hence the intention of the Parliament is clear that the Parliament did not want to include medical services/profession within the purview of the term ‘service’. The learned Senior Counsel pointed out that the Draft Bill of the new Consumer Protection Act, 2019 had included health sector among the illustrations of facilities that are treated as ‘service’ in Section 2(42) of the new Act. However, the health sector was removed from among the illustrations under Section 2(42). The obvious reason is that the lawmakers intended to exclude medical service/profession from the purview of the new Act.

Analysis

High Court noted the argument of the petitioners that a complaint in respect of medical negligence or deficiency in medical service was not maintainable before the District or State Consumer Disputes Redressal Commission for the reason that Section 2(42) of the Consumer Protection Act, 2019 does not take within its ambit the medical profession/medical services.

Supreme Court’s decision in Indian Medical Association v. V.P. Shantha, (1995) 6 SCC 651, considered the question whether medical negligence/deficiency in the medical services would fall within the ambit of ‘service’ and it was held that the services rendered to a patient by a medical practitioner by way of consultation, diagnosis and treatment, both medical and surgical would fall within the ambit of ‘service’ as defined under Section 2(1)(o) of the Act, 1986.

The Act, 1986 was substituted by the Consumer Protection Act, 2019, wherein the term ‘service’ is defined under Section 2(42).

Further, it was added that both Sections 2(42) of the Act, 2019 and Section 2(1)(o) of the Act, 1986 more or less have the same meaning and implications. The only difference is that Section 2)42) of the Act, 2019 is more descriptive and takes specifically in the banking, financing, insurance, transport, processing supply of electrical or other energy, telecom, boarding or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information.

High Court opined that Section 2(42) of the Act would show that the Parliament intended to specifically underline that, certain services like Banking, Financing, Insurance, transport, etc., which are in the nature of public utility services, would come within the purview of services.

The said definition is inclusive and not exhaustive. Therefore, all services which are made available to potential users would fall under Section 2(42), except those services rendered free of charge or under a contract of personal service. The words “but not limited to” appearing in Section 2(42) clarifies the intention of the Parliament.

Hence,

Medical services therefore would indeed fall within the ambit of Section 2(42), unless of course the service is free of charge or is under a contract of personal service.

Bench added that, the District Commission considered the issue of maintainability of the complaint and noted that there was no difference to the meaning of ‘service’ in the old Act and the new Act. Therefore, District Commission rejected the objections as to the maintainability of the complaint.

Even the State Commission held that since no conscious change in the definition of “service” was made in the new Act, the petitioner’s contention that Health Sector had been deliberately excluded by the Parliament while enacting the new law, could not be accepted.

High Court dismissed the petition in view of the above. [Dr Vijil v. Ambujakshi T.P., 2022 SCC OnLine Ker 863, decided on 10-2-2022]


Advocates before the Court:

For the Petitioners:

By Advocates:

GOPAKUMARAN NAIR (SR.)

SOORAJ T.ELENJICKAL

RENOY VINCENT

ARUN ROY

HELEN P.A.

SHAHIR SHOWKATH ALI

For the Respondents:

By Advocates:

SRI.MANU S, ASGI

SRI.V.GIREESH KUMAR, CGC

Case BriefsTribunals/Commissions/Regulatory Bodies

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

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

Factual Matrix

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

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

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

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

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

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

Analysis, Law and Decision

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

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

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

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

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

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

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

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

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

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


Advocates before the Commission:

For the Appellant :

Mr. Prashant T. Bhushan, Advocate

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

For the Respondent:

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

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

Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission (NCDRC): The Coram of Dr S.M. Kantikar (Presiding Member) and Binoy Kumar (Member) while allowing an application for transfer expressed that,

“…it is true that the doctors are busy and conscious about their duties towards the patient, but they are not exempted from the legal proceedings and duty bound to attend the court proceedings (physical or virtual mode) either through their Counsel or on their own.”

Instant petition was a transfer application to transfer the complaint from the State Commission, Chhattisgarh to the State Commission, Odisha.

Analysis and Decision

The OPs were running a Medical Centre for more than 2 decades. They have digitalization and communication facilities like WIFI/internet which may be used for e-filing/virtual proceedings.

Coram expressed that, it is true that the doctors are busy and conscious about their duties towards the patient, but they are not exempted from the legal proceedings and duty-bound to attend the court proceedings (physical or virtual mode) either through their Counsel or on their own.

The Statement of Objects and Reasons of the Act 1986 speaks of “speedy and simple redressal to consumer disputes”. This is the case of alleged medical negligence which needs a holistic approach after giving fair opportunities to the parties on both sides, instead of taking a technical approach, Commission added.

Hence, in view of the above discussion, as per the provisions contained under Section 62 of the Consumer Protection Act, 2019 the transfer application was allowed.

The Commission directed the parties to appear before the State Commission, Odisha on 7-3-2022.[Manasi Mishra v. Aayush Hospital & Maternity Home, 2022 SCC OnLine NCDRC 22, decided on 9-2-2022]


Advocates before the Commission:

For the applicant: Suyash Pande, Advocate

For the non-applicants 1 to 4: Rohini Kumar, Advocate

Legal RoundUpTribunals/Regulatory Bodies/Commissions Monthly Roundup

Appellate Tribunal for Electricity (APTEL)


State commission disallows benefit of increase in the tariff based on the change in law provision; Tribunal directs reconsideration

A Coram of R.K. Gauba (Officiating Chairperson) and Sandesh Kumar Sharma (Technical Member) decided on an appeal which was filed by Solar Power Project Developer (“SPD”) assailing order passed by respondent Bihar Electricity Regulatory Commission (“the State Commission”) disallowing the benefit of increase in the tariff based on the change in law provision with respect to increased Operation and Maintenance (O&M) costs of its 10MW solar power generating system.

Read full report here…


Armed Forces Tribunal (AFT)


AFT grants war injury pension to soldier who sustained injuries resulting in disability during Operation Hifazat

The Bench of Justice Dharam Chand Chaudhary (Member J) and Vice Admiral HCS Bisht (Member A), granted war injury pension to the ex-serviceman who had sustained injuries resulting in disability during Operation Hifazat.

Read full report here…


Arbitral Tribunal, New Delhi


Arbitral Tribunal finds SJDA at fault; directs to refund bid amount of Rs 84.24 crores to the claimant in New Township Project

“No permission for conversion of land was obtained and, therefore, even if all other conditions were fulfilled, the Claimant-Developer could not have commenced construction activities on the agricultural lands without obtaining conversion of land use.”

Read full report here…


 Competition Commission of India (CCI)


Apple charging a commission of up to 30% on all payments made through its in-app purchase system, is a violation of its dominant position? CCI orders investigation 

“Some consumers may have preference for closed ecosystem like Apple and others may have a preference for open ecosystems like that of Google.” 

Read full report here… 

Why did CCI suspend the Amazon-Future deal? Detailed analysis of CCI order imposing Rs 202 crores penalty on Amazon

“Amazon had misled the Commission to believe, through false statements and material omissions, that the Combination and its purpose were the interest of Amazon in the business of FCPL.”

Read full report here…

Is Google abusing dominant position in news aggregation? CCI gives prima facie findings; discusses Snippets, Mirror Image Websites, Paywall Options, etc.

“Google appears to operate as a gateway between various news publishers on the one hand and news readers on the other. Another alternative for the news publisher is to forgo the traffic generated by Google for them, which would be unfavourable to their revenue generation.”

Read full report here…


 Customs Excise & Service Tax Appellate Tribunal (CESTAT)


“Obiter dictum” not legally binding as precedent; jurisdictional commissioner cautioned for filing frivolous applications

Suvendu Kumar Pati (Judicial Member) dismissed an appeal which was filed in response to the order passed by this Tribunal for rectification of mistake on the ground that the order to the extent of availment of service of outdoor catering was not proper.

Read full report here…

Jurisdiction for claim of refund filed/initiated to be dealt under the provision Central Excise law and not by the provision of CGST law

Ashok Jindal (Judicial Member) dismissed the application filed by the Revenue (CCE & ST, Panchkula) for ratification of mistake in a final order by the Tribunal which was noticed by the Applicant. The Tribunal dealt with two issues (a) whether to ratify previous order & (b) to deal with the jurisdiction

Read full report here…

Is there any provision under Cenvat Credit Rules, 2004 or Finance Act, 1994 for reversal of CENVAT credit for services provided for which no consideration is received by an assessee? CESTAT analyses

“CENVAT Credit Rules or Finance Act there was no provision for reversal of CENVAT credit for the services provided for which no consideration for service provided was received by an assessee.”

Read full report here…


District Consumer Disputes Redressal Commission, Kolkata


Consumer cannot be forced to pay “service charge” in a restaurant: Consumer Forum finds conduct of restaurant contrary to principles of Consumer Protection Act

“The OPs must have been aware of the guidelines of Fair Trade Practice related to changing of service charge from the consumers by hotels/restaurant issued by Department of Consumer Affairs, Government of India, inter alia, stipulating that service charge on hotel and restaurant bill is “totally voluntarily” and not mandatory.”

Read full report here…


Income Tax Appellate Tribunal (ITAT)


If lessee is not actual owner of property, can actual rental expenses be claimed on return of income? ITAT decides

“The assessee-company has merely taken the assets on lease from the owner, and it is accordingly eligible to claim actual rental expenses in the return of income.”

Read full report here… 

Can merely disowning bank accounts exempt assessee from paying tax? Read why ITAT approved addition of Rs 12.81 Crores under S.68 of Income Tax Act

“Merely disowning the bank accounts by the assessee does not lead to the conclusion that the accounts are not maintained by him when there is a direct evidence contrary to the contention of the assessee.”

Read full report here…


 National Consumer Disputes Redressal Commission (NCDRC)


Homebuyers cannot be expected to wait indefinitely for taking possession: NCDRC allows consumer complaint against Builder, directs refund, imposes costs

Commission dealt with a complaint filed under Section 21 read with Section 2(c) of the Consumer Protection Act, 1986 by the complainant in respect of a plot allotted to him promoted by the OP, claiming deficiency of service due to delay in handing over possession of the plot allotted and claiming refund of amount deposited with compensation.

Read full report here… 

Insurer refuses to issue insurance policy as Risk Confirmation letter obtained on concealment of material fact by Insurance Broker: Policy will be vitiated? NCDRC answers

“Section 19 of Contract Act, 1872, provides that when the consent of an agreement is caused by coercion, fraud, or misrepresentation, the agreement is voidable at the option of the party whose consent is so caused.”

Read full report here…

Plastic pieces found in slices of bread, but compensation denied to consumer. Read why NCDRC set aside State Commission’s order of compensation

Ram Surat Maurya (Presiding Member) addressed a matter wherein Britannia was alleged to have pieces of plastic in its bread, but the complainant failed to prove that the bread was manufactured by the said company.

Read full report here…

Minor treated for “Measles” instead of “Stevens-Johnson Syndrome” due to wrong diagnosis and leading to medical negligence: Read detailed report on NCDRC’s decision

“The patient at her young age of 12 years suffered very serious and potentially fatal SJ syndrome. It was the patient’s sheer good luck that she survived in spite of such grossly inappropriate/inadequate treatment at every stage.”

Read full report here…


National Company Law Appellate Tribunal (NCLAT) 


Is it proper for NCLT to record finding regarding default when RP is yet to consider it and submit report? NCLAT discusses Ss. 95, 97, 99 IBC

“…there cannot be any dispute with the statutory scheme as contained in Section 97 that when application is filed by the Resolution Professional under Section 95, the Adjudicating Authority shall direct the Board within seven days of the date of the application to confirm that disciplinary proceedings pending against the Resolution Professional or not and the Board was required within seven days to communicate in writing either confirming the appointment of the Resolution Professional or rejecting the appointment of the Resolution Professional and nominating another Resolution Professional.” 

Read full report here…

Aggrieved with the categorisation as ‘unsecured creditor’, Tribunal secures ‘secured creditor’, having relinquished the security interest

The Coram of Ashok Bhushan J, (Chairperson), and Dr Alok Srivastava (Technical Member) while accepting the appeal and rejecting the claim of the respondent, the Tribunal was of the opinion that the Adjudicating Authority committed an error in rejecting the claim of the appellant to be ‘secured creditor’.

Read full report here…

Is approval with 90% vote of CoC required before allowing withdrawal of CIRP application even where CoC was not yet constituted? NCLAT clarifies law on S. 12-A IBC 

“…when the application is filed prior to the constitution of Committee of Creditors, the requirement of ninety percent vote of Committee of Creditors is not applicable and the Adjudicating Authority has to consider the Application without requiring approval by ninety percent vote of the Committee of Creditors.”

Read full report here…

Dominant position and Predatory Pricing or Win-Win for riders and drivers? NCLAT upholds CCI’s decision

“We do not think that Ola could operate independently of other competitors in the relevant market, and hence it did not enjoy a dominant position in the market.”

Read full report here…

Once Adjudicating Authority approves Resolution Plan, does it still remains a confidential document? Read what NCLAT says

“The category of creditors including the Members of the suspended Board of Directors or the partners of the corporate persons, who are entitled to participate in the meeting of the Committee of Creditors are entitled to receive copies of all documents.”

Read full report here…


 National Green Tribunal (NGT)


Rampant noise pollution, incessant use of horns; a Deplorable state of affairs! NGT finds Rajasthan in contempt of Supreme Court’s order 

While addressing the issue of pressure/air horns and motor vehicles being driven with intolerable sound in Rajasthan, the Bench comprising of Justice Sheo Kumar Singh (Judicial Member) and Dr. Arun Kumar Verma (Expert Member) found the State of Rajasthan in contempt of the Supreme Court’s order and issued notice to the state government to reply within three weeks.

Read full report here…


Securities Exchange Board of India (SEBI)


Twitter, Telegram and the tattered chances-Illicit act of swindlers recommending stock tips on social media; Tribunal acts immediately

“The tips circulated through the Channel create an inducing impact which are then followed by the subscribers and ironically, such stock tips may also prove to be true, if large number of recipients of such tips believe it and collectively act on it. Slowly and gradually, after seeing the price of the said thinly traded scrip actually rising, more and more subscribers start believing in the tips and start acting on it, which further strengthens the belief of such tips being genuine, as large number of individuals end up acting on such tips and by their collective buying actions, convert the deceitful, specious and baseless tips to realty”

Read full report here…

‘Billionaire’ dream turns into dread-Unauthorsied investment advisory amounted to fraud & misrepresentation

S.K. Mohanty, Whole Time Member while affirming an ex-parte interim order of SEBI, was of the view that the activities of the Noticees, Billionaire Solutions Pvt. Ltd. (Sole proprietor Akash Jaiswal) was covered within the definition of “fraud” defined under regulation 2(1)(c) of the PFUTP Regulations, 2003. And therefore was held liable for the violation of provisions of Section 12A (a), (b), (c) of the SEBI Act, 1992, Regulations 3 (b), (c) & (d), 4(1), 4(2)(k) of the SEBI (Prohibition of Fraudulent and Unfair Trade Practices relating to Securities Market) Regulations, 2003 (PFUTP Regulations, 2003).

Read full report here…

Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission (NCDRC): While noting a case of medical negligence, the Coram of Justice R.K. Agrawal (President) and Dr S.M. Kantikar (Member) found that the doctor failed to correctly diagnose a serious disease of the minor which led to a lack of skill and reasonable standard of care.

Medical Negligence

A minor filed a Consumer Complaint before the District Consumer Disputes Redressal Commission Forum through her father alleging medical negligence against the OPs/Petitioners for wrong diagnosis and wrong treatment which led to rashes on her body and became beyond control. It was further alleged that OP 2 being a BAMS (Ayurveda Doctor) was not competent to prescribe allopathic medicines, which amounted to medical negligence.

District Forum had directed a compensation of Rs 1 lakh along with interest @9% to the complainant. When the matter reached the State Commission, it was held that the petitioner was entitled to prescribe and treat the patient with Allopathic Medicines but held the petitioner liable for medical negligence for the wrong diagnosis ad treatment.

OPs being aggrieved with the above order filed present revision petition.

Analysis, Discussion and Decision

From the medical record, it was apparent that the Petitioner was qualified, in the system of Ayurveda medicine, as a BAMS.

On 03-03-2009, he recorded the clinical findings as “fever (1020F), Bilateral Conjunctivitis +ve, Stomatitis +ve and made the diagnosis as ? measles. He prescribed medicines the antibiotic (Acef 100mg), Boroglycerine, steroid – tablet Dexa 1 tid, and eye drop. On the next day, patient had more itching, therefore he stopped oral Dexa and gave injection Efcorline (Hydrocortisone) and thereafter, the patient was referred to the physician, Dr R.S. Rai, who suspected it as ‘Stevens Johnson Syndrome’ (for short ‘SJ syndrome’) and further referred to Rajindra Hospital at Patiala.

According to the Petitioner, the same treatment which he gave in his hospital was given at the Rajindra Hospital. Though, he was BAMS, but he was allowed to practice and prescribe allopathy treatment as per the notification dated 18-06-2004 issued by the State Government of Punjab. Therefore, there was no fault or negligence in his treatment.

Cross Pathy

Commission noted that as per the Supreme Court decision in Dr Mukhtiar Chand v. State of Punjab, (1998) 7 SCC 579Ayurveda, Siddha, Unani and Homeopathy practitioners can prescribe allopathic medicines only in those states where they are authorized to do so by a general or special order made by the State Government concerned.

Further, the Coram expressed that, Few State Governments have authorized AYUSH doctor(s) it by some special order(s) to prescribe medicines of allopath, but in our view, that does not authorize the doctor to deviate from the standard of care which results into wrong diagnosis and prescribe wrong medicines.

 In the instant matter, the petitioner failed to diagnose the serious disease correctly as SJ syndrome, but he continued to treat the patient for measles and further failed to administer proper doses of steroids. Such act of the petitioner amounted to lack of skill and reasonable standard of care.

Coram relied on the Supreme Court’s decision in Poonam Verma v. Ashwin Patel, (1996) 4 SCC 332, wherein it was held that “the doctor must not only be qualified, but he must also be registered with the appropriate Medical Council in order to practice as a doctor. A homoeopath would not have knowledge about allopathic medicines and its drug actions, so administration of allopathic treatment by a homoeopath would be proof enough to establish negligence”.

Commission on perusal of the treatment record of Rajindra Hospital, Patiala noted the serious condition of the patient due to SJ syndrome.

Coram noted the 4 points on which the OP 2 failed:

  • Failure to correctly diagnose the condition as SJ syndrome but treated the patient for Measles.
  • The dose of steroid 4mg Dexa was inadequate for the patient; the dosage should be calculated as per kg of body weight.
  • For treatment of SJ syndrome the appropriate drugs of choice would be Cyclosporine with Methylprednisolone and the dosage to be per kg body weight of the patient.
  • There was a delay and wrong referral of the patient to the physician instead of a skin specialist.

Noting that the medical negligence occurred in 2009 and now we are in 2022, the compensation awarded was certainly on the lesser side.

The patient at her young age of 12 years suffered very serious and potentially fatal SJ syndrome. It was the patient’s sheer good luck that she survived in spite of such grossly inappropriate/inadequate treatment at every stage.

 Therefore, the patient deserved enhanced just and reasonable compensation.

Commission awarded a lump sum amount of Rs 10 lakhs as just and reasonable while disposing of the revision petition. [Chandigarh Nursing Home v. Sukhdeep Kaur, 2022 SCC OnLine NCDRC 5, decided on 3-1-2022]


Advocates before the Commission:

For the petitioner: K.G. Sharma, Advocate

For the respondent: Amn Priye Jain, Advocate

Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission (NCDRC): Justice R.K. Agarwal (President) and Dr S.M. Kantikar and Binoy Kumar (Members) decided a matter with regard to alleged medical negligence.

Issue for Consideration:

Whether non-referral of the patient to the Specialist or higher centre amounts to deficiency in service or medical negligence of the treating doctor/hospital?

Complainants Case

The complainant’s case was that their son Rahul (since deceased, referred to as the “patient”) about 17 years of age was hit by the train while crossing the railway track. It was alleged that the doctors did not carefully attend to the fatal head injuries. The Neurosurgeon was not available in the hospital and the patient was not referred to the higher centre. Ultimately, the patient died.

OPs denied negligence during treatment, and they treated the patient with all precautions.

On being aggrieved by the alleged carelessness, deficiency in service and medical negligence causing the death of Rahul, the complainants filed the consumer complaint before the District Forum.

Analysis, Law and Decision

Commission noted that the deceased had sustained grievous injuries due to hit by the train. Immediately after conducting relevant investigations and X-rays, he was shifted to the ICU and was kept under observation.

On perusal of the facts and circumstances of the present matter, Coram opined that the patient was evaluated by specialist doctors and was treated as per their reasonable skills and standard of practice.

Commission did not find any failure of duty of care or negligence from the OPs to refer the patient at higher centre, because it was a serious accident, and the patient was in critical stage.

It was held that the doctors took the required care as under the standard of practice to deal with the emergency situation.

Lastly, it was concluded stating that the patient was critical and unless his condition gets stabilized, shifting the patient to a higher center as not advisable. Hence, no deficiency in treatment was found by the treating doctors.

No merit was found in the revision petition. [Malhe Ram v. Jeevan Jyoti Hospital, 2021 SCC OnLine NCDRC 416, decided on 13-12-2021]


Advocates before the Commission:

 For the Petitioners: Mr. Naresh Kumar Gupta, Advocate

For the Respondent 2 – 4: Mr. Navin Kumar, Advocate

For the Respondent 5: Mr. Anand Vardhan, Advocate

Case BriefsSupreme Court

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

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

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

Factual Analysis

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

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

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

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

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

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

Findings of the Court

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

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

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

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

Decision

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

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

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


Kamini Sharma, Editorial Assistant has put this report together


*Judgment by: Justice Hemant Gupta

Case BriefsTribunals/Commissions/Regulatory Bodies

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

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

Facts in Nutshell

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

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

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

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

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

District Commission partly allowed the complaint of the complainant.

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

Main Consideration:

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

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

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

Hospital’s Liability

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

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

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

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

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


Advocates before the Commission:

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

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

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

Case BriefsDistrict Court

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

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

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

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

Analysis, Law and Decision

Law on Medical Negligence and Criminal Liability

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

“…To prosecute a medical professional for negligence under criminal law it must be shown that the accused did something or failed to do something which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do. The hazard taken by the accused doctor should be of such a nature that the injury which resulted was most likely imminent.”

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

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

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

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

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

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

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

Case BriefsSupreme Court

Supreme Court: A Division Bench comprising of 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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