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MEDICAL NEGLIGENCE

By : Amandeep singh Grewal on 25 November 2009 Report Abuse Print Print this
 



 Medical Negligence

 

Introduction

 

This Chapter aims to discuss the following:

 

􀁺 What is meant by medical negligence?

􀁺 What are the available remedies for victims of medical negligence?

􀁺 What have been the recent trends of the judiciary in the matters pertaining to medical negligence and deficiency in medical services?

 

Negligence can be described as failure to take due care, as a result of which injury ensues. Negligence excludes wrongful intention since they are mutually exclusive. Carelessness is not culpable or a ground for legal liability except in those cases in which the law has imposed the duty of carefulness. The medical profession is one such section of society on which such a duty has been imposed in the strictest sense. It is not sufficient that the medical professional acted in good faith to best of his or her judgement and belief. A medical professional is expected to have the requisite degree of skill and knowledge The question in every case would be whether the medical practitioner in fact attained the degree of due care established by law. Medical negligence is a sub species of this tort (civil wrong) which falls within the larger species of professional negligence. Under our law, medical negligence, like other forms of negligence, is a criminal offence for which a doctor can even be imprisoned. This is so in many other legal systems also. Medical malpractice, however, is not merely the negligence on the part of the care giver; it is a conscious decision of the care giver to offer and/ or force a product, procedure or investigation upon a patient for monetary gain either personally or for the institution.

                                                  But what amounts to medical negligence? Is there a difference between how civil law and criminal law define negligence? Till 2004, it was generally believed that though civil law and criminal law provided for different remedies, what constituted negligence under both these laws was the same. However recent decisions of the Supreme Court have taken a different view.

 

There are three essential components of negligence:

􀁺 The existence of a duty to take care, which is owed by the doctor to the complainant;

􀁺 The failure to attain that standard of care, prescribed by the law, thereby committing the breach of such duty;

􀁺 Damage, which is both causally connected with such breach and recognized by the law, has been suffered by the complainant.

 

This is the ordinary legal meaning of negligence. But for professionals such as medical practitioners an additional perspective is added through a test known as the Bolam test which is the accepted test in India. In the case of Bolam vs. Friern Hospital Management Committee,[1] the Queen’s Bench Division of the British Court held: A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art.

 

                                                         As set out in the judgment of the Supreme Court in the case of Jacob Mathew vs. State of Punjab[2] The standard of care, when assessing the practice as adopted is judged in the light of the knowledge available at the time (of the incident), and not at the date of trial.

 

                                 When the charge of negligence arises out of a failure to use some particular equipment, the charge would fail if the equipment was not generally available at that point of time on which it is suggested as should have been used. In this decision the Supreme Court also observed that for inferring negligence on the part of a professional, including a doctor, additional considerations apply. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed.

 

Finally, while dealing with negligence the Supreme Court made the following observations:

 

A professional may be held liable for negligence when

 

a) He was not possessed of the requisite skill which he professed to have possessed; [and/ or]

 

b) He did not exercise, with reasonable competence in the given case, the skill, which

he did possess.

 

The standard to be applied for judging whether the person charged has been negligent or not would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices.”

 

All the three remedies can be resorted to simultaneously.

 

Case Law

 

Criminal Negligence

As regards criminal liability of medical practitioners, Supreme Court in a recent judgment in the case of Dr. Suresh Gupta vs. Govt. of Delhi[3] curtailed criminal proceedings against medical negligence to incidents of gross negligence. It held that a medical practitioner cannot be held punishable for every mishap or death during medical treatment. No criminal liability should be attached where a patient’s death results from error of judgment or an accident. Mere inadvertence or some degree of want of adequate care and caution might create civil liability but would not suffice to hold him criminally liable.[4]

 

                               The degree of medical negligence must be such that it shows complete apathy for the life and safety of the patient as to amount to a crime against the state. The issue has been more elaborately dealt with in the case of Jacob Mathew discussed above. In Suresh Gupta’s case, the patient died while he was being operated for nasal deformity, a minor operation without much complexity. The medical experts of the prosecution testified that the cause of death was due to the failure of the Appellant to introduce a cuffed endotracheal tube of proper size to prevent aspiration of blood from the wound in the respiratory passage. The Supreme Court held that even if it was assumed that the Appellant was negligent, he would not be criminally liable as the alleged act was not grossly negligent. At the most he was liable in tort for damages but not for imprisonment under the criminal law. The Court expressed concern that if the liability of doctors were unreasonably extended to criminal liability thereby exposing them to the risk of landing themselves in prison for alleged criminal negligence then the repercussion would be that the doctors would be worried about their own safety rather than administering treatment to the best of their ability. The Court felt that this would adversely affect the society at large and shake the mutual confidence between the doctor and the patient.

 

What are the various remedies available under the Indian law in case of medical negligence? Broadly, there are three remedies available:

 

(1) CIVIL SUIT CONSUMER COURT

 

  • Civil Remedy where the relief is sought in compensation under the Consumer Protection Act 1985

 

  • Cases deal in medical negligence and medical practice

 

(2) CASE IN MEDICAL COUNCIL

 

  • A case against a doctor can be filed in Medical Council of the concerned system of medicine

 

  • Medical Councils do not have powers to award compensation or to imprison

 

  • It can only warn the doctor, suspend or revoke the license

 

 

 

 

(3) CASE OF CRIMINAL NEGLIGENCE

 

  • The main section under which a criminal case is filed against doctors is Section 304B of the Indian Penal Code which deals with causing death due to rash and negligent act The punishment is two years imprisonment or fine or both.

 

  • Similarly, S.336 of the Penal Code provides that it is an offence to endanger the human life or personal safety of others through a rash or negligent act. The punishment is three months imprisonment or fine of Rs. 250 or both

 

  • S. 337 and 338 of the Indian Penal Code make it an offence to cause simple hurt or grievous hurt through rash or negligent act. The punishment can be upto six months of imprisonment or fine upto Rs. 500 or both for simple hurt and S. 337 and 338 of the Indian Penal Code make it an offence to cause simple hurt or grievous hurt through rash or negligent act. The punishment can be upto six months of imprisonment or fine upto Rs. 500 or both for simple hurt and punishment upto 2 years or fine upto Rs. 1000 or both for causing grievous hurt.

 

 

 

 

Even where gross negligence is alleged, a prima facie case must be established before a magistrate at the first instance as was pointed out in Dr. Anand R. Nerkar vs. Smt Rahimbi Shaikh Madar[5] It is necessary to observe that in cases where a professional is involved and incases where a complainant comes forward before a Criminal Court and levels accusations, the consequences of which are disastrous to the career and reputation of adverse party such as a doctor, the court should be slow in entertaining the complaint in the absence of the complete and adequate material before it.

                                                            

                                                                  It is always open to the learned magistrate to direct an enquiry through the police so that all relevant aspects of the case are looked into before process is issued.… the duty cast on the trial Magistrate under Section 202 of the Criminal procedure Code is not to be understood as being confined to ascertain as to whether the complainant and the witnesses have mechanically averred that the accused has committed an offence, but it presupposes that judicial mind will apply itself to the case made out as a whole and conclude as to whether there is sufficient justification to hold that an offence has been committed. The establishment of a prima facie case, therefore, indicates that on the face of the record all ingredients that would constitute the commission of an offence are before the court. Where there exist serious lacunae in the case made out and where the possibilities and probabilities of an adverse conclusion are remote, it would not be justified in holding that a prima facie case has been made out.

 

                                              

 

So far so good. But what the Supreme Court did in the Jacob Mathew’s case6 was to hold that the ingredients of criminal negligence were more rigorous than those of civil negligence. In addition to the ingredients of civil negligence for establishing criminal negligence

                 it shall have to be found that the rashness was of such a degree as to amount to taking a hazard knowing that the hazard was of such a degree that injury was most likely imminent…Where negligence is an essential ingredient of the offence the negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment….criminal negligence is the gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against injury… .

 

The Supreme Court also laid down guidelines for prosecuting doctors:

 

1. A private criminal complaint should not be entertained unless the complainant has produced prima facie evidence in the court in the form of a credible opinion given by another competent doctor to support the charge of rashness or negligence.

 

2. The investigating officer, before proceeding against a doctor, should obtain an independent medical opinion preferably from a doctor in government service qualified in that branch of medical practice.

 

3. The accused doctor should not be arrested in a routine manner unless his arrest is necessary for furthering investigation or for collecting evidence or unless the investigating officer feels satisfied that the doctor will abscond

 

This judgment in fact amounts to a stretched interpretation of the words of the legislation and placing doctors on a relatively higher pedestal when the law itself does not make any such distinction.

 

Jurisdiction of Consumer Courts

 

Medical negligence gives rise to civil and criminal liability. We have already mentioned that as regards civil wrongs, an aggrieved person can claim compensation either through a civil suit or a complaint lodged with consumer forum. Since the enactment of Consumer Protection Act, 1985 there has been a significant rise in medical negligence cases being filed. In one sense, the passing of this law has given a boost to consumers for approaching courts in respect of negligence. Before we go into substantial aspects of medical negligence it is important to see how the Courts have interpreted the Consumer Protection Act and its jurisdiction. Doctors have raised a number of concerns regarding the applicability of Consumer Protection Act. Wide ranging issues from applicability of the Act to medical practitioners, the nature of medical services which would be covered

by the Act, the nature of consumers (i.e. patients) who would be covered by the Act have been litigated. Since this is the law most used by patients and their relatives, it becomes important to first see whom it applies to.

 

For quite some time after the passage of the Consumer Protection Act, furious debate was

raging whether it at all applies to doctors, hospitals and nursing homes and if so under what situations. The Supreme Court finally set at rest this controversy in the case of Indian Medical Association vs. V.P. Shantha[6]. The Court held that proceedings under the Consumer Protection Act are summary proceedings for speedy redressal and the remedies are in addition to private law remedy. The issue was whether patients are consumers under the Consumer Protection Act and could they claim damages for injury caused by the negligence of the doctor, hospital or nursing home.

     

                                          Apart from submitting that patients could not be classified as consumers under the Consumer Protection Act, the Medical Association argued the following points that are briefly reproduced:

 

a) Deficiency in service, as defined under the Act, means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained under any law or has been undertaken to be performed by a person in pursuance of a contract or otherwise in respect to any service.[7] Thus, deficiency is ascertained on the basis of certain norms relating to quality, nature and manner of performance, and since medical services cannot be judged on the basis of any fixed norms, therefore, practitioners are not covered under the definition of ‘services’.

 

b) Only such persons can fairly and justly decide on medical malpractice cases who are

themselves qualified in medical field as they will be able to appreciate the complex issues

involved in such cases. The District Forum comprises of President who is or was a District Judge and the other two members who shall be persons having adequate knowledge or experience of, or having shown capacity in dealing with, problems relating to economics, law, commerce, accountancy, industry, public affairs or administration. Similarly State Commission and National Commission comprise of two non-judicial members who are concerned with economics, law, commerce, accountancy, industry, public affairs or administration, while the President shall be a person who is or was a judge of a High Court and Supreme Court, respectively. It was submitted that as the members of the Forum are not qualified to deal with medical malpractice claims medical practitioners should be exempted from the ambit of the Act.

 

c) Medical malpractice claims involve complex issues that will require detailed examination of evidence, deposition of experts and witnesses. This is contrary to the purpose of summary proceedings involving trial by affidavits, which is to provide speedy results. Hence Consumer Forum should not adjudicate medical malpractice cases.

 

d) If the medical practitioners are brought within the purview of the Act, the consequences would be a huge increase in medical expenditure on account of insurance charges as well as tremendous increase in defensive medicine, that medical practitioners may refuse to attend to medical emergencies and their will be no safeguards against frivolous and vexatious complaints and consequent blackmail.

 

The Supreme Court, however, rejected all these arguments and held -

 

a) The Act defines ‘consumer’ as any person who hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for the consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person.[8]

 

                               ‘Service’ means service of any description which is made available to potential users and includes the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, boarding or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include rendering of any service free of charge or under a contract of personal service.

 

The Supreme Court observed that all services are included other than those that are provided for free or under a contract of service.

 

b) The next question was on what parameters of deficiency in services of medical practitioners, hospitals or nursing homes should be ascertained. Section 14 enumerates the relief that can be granted for deficiency in service. Sub-section 1(d) provides compensation for any loss or injury suffered by a consumer due to negligence of the opposite party. A determination of deficiency in services has, therefore, to be made by applying the same test as is applied in an action for damages for negligence. The test is the standard of medical care a reasonable man possessing same skills and expertise would employ under same circumstances. A medical practitioner need note Exhibit extraordinary skills.

 

c) As regards the expertise of the member of the consumer forum to adjudicate on medical malpractice cases the Supreme Court observed that the object of the Act is to have members who have required knowledge and experience in dealing with problems relating to various fields connected with the object and purpose of the Act, which is to protect the interest of the consumers. Also as person who is well versed in law and has considerable judicial or legal experience heads all the forum, it will ensure that the deliberation on cases will be guided by legal principles. To say that the members must have adequate knowledge or experience in the field to which the complaints are related would lead to impossible situation.

 

If the jurisdiction is limited to the area of expertise of its members then complaints relating to large number of areas will be outside the scope of the Act as the two members in the District Forum have experience in two fields. The problem will arise vertically as at particular times in State Commission there may be members having experience in fields other than that of members of District Forum, would this imply that the State Commission will be ousted of its Appellate jurisdiction in such complaints. The intention of the legislature is to ensure that the members have the aptitude to deal with consumer problems. It is for the parties to place the necessary material before the forum to deliberate upon. It cannot therefore, be said that since the members of the Consumer Dispute Redressal Agencies do not possess knowledge and experience in medicine, they are incapable of dealing with medical malpractice cases.

 

d) The Appellant had contended that medical malpractice cases involved complicated question of facts that are not fit for summary trials. Such cases should be kept outside the purview of the Act. The Supreme Court observed that in some cases complicated questions requiring recording of evidence of experts may arise but this was not so in all cases. There are many cases where the deficiency of services is due to obvious faults, as for instance, removal of the wrong limb or performance of an operation on the wrong patient or injecting drug to which the patient is allergic without looking into the out-patient card or the use of wrong anesthetic or during surgery leaving swabs or other foreign objects inside the patient during surgery. Such issues arising in complaint can be easily established and speedily disposed off by consumer courts. In complaints involving complicated question of facts that require recording of evidence of experts, the consumer forum can ask the complainant to approach a civil court for appropriate relief. The Act clearly states that its provision is in addition to and not in derogation of the provisions of any law for the time being in force.

 

e) The Supreme Court drew the following conclusions:

 

i) Services rendered to patient by a medical practitioner (except where the service is free of charge to every patient or under a contract of personal service), by way of consultation, diagnosis and treatment, both medical and surgical, would fall within the ambit of services as defined in Section 2(1)(o) of the Act

 

ii) The fact that medical practitioners belong to the medical profession and are subject to the disciplinary control of the Medical Council of India and /or State medical Councils would not exclude the services rendered by them from the ambit of the Act.

 

iii) Services rendered by a medical officer to his employer under the contract of employment is not ‘service’ under S. 2(1)(o) for purposes of the Act

 

iv) Services rendered at private or a Government hospitals, nursing homes, health centres and dispensaries for a fee are ‘services’ under the Act while services rendered free of charge are\ exempted. Payment of a token amount for purposes of registration will not alter the nature of services provided for free. Services rendered at Government or a private hospitals, nursing homes, health centres and dispensaries where services are rendered on payment of charges to those who can afford and free to those who cannot are also ‘services’ for the purposes of the Act. Hence in such cases the person who are rendered free services are ‘beneficiaries’ under S. 2(1) (d) thereby ‘consumer’ under the Act.

 

v) Services rendered free of charge by a medical practitioner attached to a hospital/ nursing home or where he is employed in a hospital/ nursing home that provides free medical facilities, are not ‘services’ under the Act.

 

vi) Where an insurance company pays, under the insurance policy, for consultation, diagnosis and medical treatment of the insurer then such an insurer is a consumer under S. 291)(d) and services rendered either by the hospital or the medical practitioner is ‘service’ under S. 2(1)(o). Similarly where an employer bears the expenses of medical treatment of its employee, the employee is a consumer under the Act.

 

The remedy under Consumer Protection Act is in addition to civil remedy and it cannot be denied to a consumer merely on the ground that either the facts are too complicated or the complainant’s claim is unreasonable.

 

                                 In Charan Singh vs. Healing Touch Hospital,[9] the Appellant had brought a claim of Rs. 34 lakh for removal of one of his kidneys without his consent during the course of the operation, which resulted in the loss of his job and huge expenses for his treatment and upkeep. The National Consumer Commission dismissed his complaint on the reasoning that his claim was excessive, exaggerated and unrealistic. This was because a consumer is required to approach the District, State or National Commission directly depending on the compensation claimed. ...the complainant was drawing a salary of Rs. 3000 plus allowances…This is his allegation, which is not admitted by the opposite party. Even if we accept his contention is correct and even if we accept that as a result of wrong treatment given in the Hospital he has suffered permanent disability, the claim of Rs. 34 lakhs made by the complainant is excessive. We are of the view that this exaggerated claim has been made only for the purpose of invoking the jurisdiction of this commission… .

 

The Supreme Court opined that the quantum of compensation is at the discretion of the Forum irrespective of the claim. The legislative intent behind the Act is to provide speedy summary trial and the Commission should have taken the complaint to its logical conclusion by asking the parties to adduce evidence and rendered its findings on merits. The Court further held,

 

a. While quantifying damages, Consumer Forums are required to make an attempt to serve the ends of justice so that compensation is awarded, in an established case, which not only serves the purpose of recompensating the individual, but which also at the same time aims to bring about a qualitative change in the attitude of the service provider.

 

b. It is not merely the alleged harm or mental pain, agony or physical discomfort, loss of

salary and emoluments etc. suffered by the Appellant which is in issue here. It is also the

quality of conduct committed by the Respondents upon which attention is required

to be founded in a case of proven negligence. (para 13, p. 673)

 

In the case of Dr. J.J. Merchant vs. Shrinath Chaturvedi,[10] the Supreme Court observed that in matters involving complicated questions of fact that require recording of evidence, the consumer forum has the discretionary power to direct the complainant to approach civil court for appropriate reliefs. Nevertheless, the procedure provided in the Act is adequate vis-à-vis civil suit to decide medical malpractice cases involving complicated questions of law and fact. For instance affidavits of experts including doctors can be taken as evidence. Thereafter, if cross-examination is sought by the other side and the Commission finds it proper, it can easily evolve a procedure permitting a party who intends to cross-examination to put certain questions in writing and experts including by doctors on affidavit could reply to those questions. In case where the stakes were high and if a party insisted on cross-examining such doctors or experts, there could be video or telephonic conference and at the initial stage this cost should be borne by the person who demands such conferences. Further, the Commissioner appointed at the work place can undertake the crossexamination. For avoiding delay the district forum or commissions can evolve a procedure of levying heavy cost where a party seeks adjournment on one or the other ground.

 

                                          In Spring Meadows Hospital vs. Harjo Ahluwalia[11] the Supreme Court was concerned with the rights of a parent when a child dies due to medical negligence. It was argued by the hospital that the parents were not consumers under the Act so could not get any relief. The Court rejected this argument and observed that even parents were covered under the Act and there was nothing in the law which prevented the parents as well as the child from recovering damages. In this case, a child patient was treated for seven days in the Spring Meadows Hospital (Noida) for typhoid. The consultant physician prescribed “Chioromphenical injection”, but the unqualified nurse misread it as “chloroquine” and indented, for the purchase of injection, “Lariago” (i.e. chloroquine). She injected chloroquine 5 mg IV, which was at least 3-1/2 times of the normal paediatric dose. The patient suffered irreversible brain damage. Treatment for 21 days in AIIMS, New Delhi, did not help. The patient was compelled to live in a vegetative state.

 

The National Consumer Commission, whose judgment was confirmed by the Supreme Court, came to the conclusion, that the attending doctor was negligent, as he allowed an unqualified nurse to administer the injection, even though the consultant doctor had advised administration by the attending doctor himself.

 

The hospital and the nurse were jointly and severally liable. The Court made the following important observations:

 

Very often in a claim for compensation arising out of medical negligence a plea is taken that it is a case of bona fide mistake which under certain circumstances may be excusable, but a mistake which may tantamount to negligence cannot be pardoned….Gross medical mistake will always result in a finding of negligence. Use of wrong drug or wrong gas during the course of anesthetia will frequently lead to the imposition of liability…. Even delegation of responsibility to another may amount to negligence in certain circumstances. A consultant could be negligent where he delegates the responsibility to his junior with the knowledge that the junior was incapable

of performing his duties properly.

 

The Court ordered the following compensation in  the case:

 

(a) Rs. 12.5 lakhs to the child (Rs. 10 lakhs compensation, plus Rs. 2.5 lakhs for equipment).

 

(b) Rs. 5 lakhs to the parents, for mental agony.

 

The Supreme Court further held that when a young child is taken to a hospital and treated by the hospital, then

 

(a) the child’s parents would come within the definition of “consumer”; and

 

(b) the child also becomes a “consumer”, being a beneficiary of such services.

 

[Even where the patient is a married daughter, the parents who are required “to spend for her treatment, are also ‘consumers’”, Rajaram S.Parale vs. Dr. Kalpana Desai[12]

 

In the case of Sailesh Munja vs. All India Institute of Medical Sciences (AIIMS),[13]the hospital claimed that since the treatment was subsidized by the hospital it would not be covered under the Act. The National Commission rejected this argument and held since the treatment was subsidized and not totally free; the hospital would be covered under the Consumer Protection Act.

 

                           In Ranjit Kumar Das vs. ESI Hospital[14] the Complainant’s wife was not given admission to ESI Hospital though the Complainant was registered under the Act. She died and the Complainant was ordered to be paid Rs. 2 lakh as compensation. This case is significant because it lays down that the ESI hospitals, though government run, are covered under the Consumer Protection Act.

 

In Suhas Haldulkar vs. Secretary, Public Health Dept., State of Maharashtra[15] the

National Commission held that since the hospital concerned was a Government hospital where patients are treated wholly without charge, a complaint before the Consumer Forum was not maintainable. The Complaint was dismissed since all the patients were treated free of charge but with liberty to the Complainant to approach the civil court. If of course some of the patients were being charged for the services provided, the Court would have had the jurisdiction even if the concerned patient was treated free of charge.

 

Can the consumer court go into the propriety of the fees charged by a doctor or a hospital?

 

In B.S. Hegde vs. Dr. Sudhanshu Bhattacharya[16] , the State Commission of Maharashtra held the doctor guilty of gross negligence for failure to render necessary postoperative care which was undertaken by him for a consideration (fee). This fee of Rs. 40,000 was paid by cheque a few days after the open-heart by-pass operation performed on the complainant at the Bombay Hospital, for rendering postoperative care and treatment for a period of three months. The fee was held to be excessive, unreasonable and unjustifiable though it was conceded that the amount to be charged as fee for medical services was the choice of the medical practitioner. The state commission awarded a sum of Rs. 2 lakh by way of compensation to the patient. The Complainant approached the Consumer Forum against exorbitant charges levied by the Respondent Cardiologist. Though the National Forum expressed its shock at the charges leveled, it held that it did not have the jurisdiction to go into the propriety of the fees charged by a doctor.

 

Civil Negligence and Deficiency in Medical Service

 

The substantial aspects of civil liability in negligence cases have, by and large, remained the same over decades with a few additions. The Indian civil law on negligence essentially is the judge made common law followed in England for centuries. The main principles have been as laid out in the introduction to this chapter. This section cooks at the application of these principles in concrete situations.

 

What are the duties of the doctor towards a patient who approaches him?

 

In Dr. Laxman Balkrishna Joshi vs. Dr. Trimbak Bapu Godbole[17] the patient had died due to shock when the Appellant attempted a reduction of fracture without taking elementary caution of giving anesthesia. In the light of the surrounding circumstances it was held that the Appellant was negligent in applying too much of force in aligning the bone. The Supreme Court held that doctors have the discretion to choose the course of treatment to be given and such discretion is relatively large in an emergency case. Nevertheless, the doctor owes his patients a duty of care in deciding whether to undertake the case, the line of treatment to be adopted and a duty in administering that treatment. When a doctor gives medical advice and treatment, he impliedly undertakes that he is possessed of skill and knowledge for the purpose. And in executing his duty he must employ a reasonable degree of skill, knowledge and care.

 

The Supreme Court also cited with approval the observations in Halsbury Laws of England in its Vol. 30 which state that whether or not he is a registered medical practitioner, such a person who is consulted by a patient owes him certain duties, namely

 

a) duty of care in deciding whether to undertake the case;

 

b) duty of care in deciding what treatment to give;

 

c) duty of care in his administration of that treatment; and

 

d) Duty of care in answering a question put to him by a patient in circumstances in which he knows that the patient intents to rely on his answer.

 

A breach of any of these duties will support an action for negligence by the patient.[18]

 

What does a complainant have to prove in order to carry home a charge of medical negligence? The Bombay High Court held that in a claim against medical negligence it was not sufficient to show that the patient suffered in some way. It had to be proven that the suffering or death of the patient was the result of negligence on the part of the doctor. In Philips India Ltd. vs. Kunju Punnu[19] the Bombay High Court held that in an action for negligence against a doctor, the plaintiff has to prove:

 

a) that the defendant had a duty to take reasonable care towards the plaintiff to avoid the damage complained of ;

 

b) that there was a breach of duty on the part of the defendant; and

 

c) That the breach of duty was the real cause of the damage complained of and such damage was reasonably foreseeable.

 

In the instant case the deceased was an employee of the Appellant. He approached the resident doctor of the company complaining of a digestive problem and was treated accordingly. After a week he returned, this time complaining of fever, cold and headache. Within four or five days he was brought in with high fever and was kept in the company’s dispensary for observation. In the evening when the doctor found red pigmentation on his body he advised pathological tests and was taken to a nursing home of a specialist who treated him for bacteraemia. He approved of the treatment given by the doctor. Later it was discovered that the deceased was suffering from small pox that eventually caused his death.

 

The issue before the court was whether the doctor was negligent as he failed to diagnose small pox. The court held that a mistaken diagnosis was not necessarily negligent diagnosis. A practitioner can be liable if his diagnosis is so palpably wrong as to prove negligence, in other words, if his mistake is of such a nature as to imply an absence of reasonable skill and care on his part regard being had to the ordinary levels of skills in the profession. In the instant case there was no evidence to show that when the patient was taken to the company doctor any doctor of ordinary skill and competence could have diagnosed the disease of the patient as small pox or treated him for small pox. There was

no epidemic of small pox at that time to induce the defendant doctor from carrying on test for the same. On the other hand, expert evidence showed that fulminating small pox could have occurred within 24 or 36 hours with no outward manifestations at all and that appearances were very indefinite with no findings on which to base a certain diagnosis. Thus, the defendant doctor was held to be not negligent. However, what is most important about this case is that the court held that just because a doctor is employed by a company to treat its employees, his responsibility is neither higher nor lower than that of an ordinary doctor.

 

In some circumstances, however, negligence may be attributed to a medical practitioner without proof of direct nexus between injury and conduct of the practitioner. In Poonam Verma vs. Ashwin Patel[20] Respondent No. 1 was a registered homeopathy doctor who prescribed allopathic medicine for viral fever, which were prevalent in the Appellant’s locality. The condition of the Appellant’s husband deteriorated and he was admitted in Respondent No.2, a nursing home, for pathological tests and diagnosis. The deceased was treated for two days and as his condition did not improve he was shifted to another hospital where he died within hours of admission. In appeal the Supreme Court set up an ad hoc medical board to determine the cause of death. The board concluded that it was impossible to determine the true cause of the death. Therefore, claims against Respondent No.2 hospital were set aside but Respondent No.1 was held negligent on the ground that he was a homeopathic doctor and was not qualified to administer any other system of medicine. Respondent No.1 was held to be negligent per se.

 

Black’s Law Dictionary defines ‘negligence per se’ as-

 

Conduct, whether of action or omission, which may be declared and treated as negligence without any argument or proof as to the particular surrounding circumstances, either because it is in violation of a statute or valid municipal ordinance, or because it is so palpably opposed to the dictates of common prudence that it can be said without hesitation or doubt that no careful person would have been guilty of it. As a general rule, the violation of a public duty, enjoined by law for the protection of person or property, so constituted.

 

Also known as the Doctrine of Res ipsa Loquitur (things speaks for itself), the doctrine is attracted “…when an unexplained accident occurs from a thing under the control of the defendant, and medical or other expert evidence shows that such accidents would not happen if proper care were used, there is at least evidence of negligence ‘for a

jury’”.[21]

 

 

It may be mentioned that now under the judgment in the Jacob Mathew’s case (ibid) the Supreme Court has held that the doctrine of res ipsa loquitur is not applicable in criminal cases. It continues to be applicable in civil cases.

 

Even so, the present judgment seems to be incorrect, in the context of the long line of precedents on negligence. In this case, the cause of death was not attributed to the treatment. Thus there was no causal link established between the treatment and the death. In the absence of this, punishing a doctor for negligence does not fit within the law. The Court could have, of course, directed the homeopathic doctor to be prosecuted and his registration to be cancelled for practising allopathic medicine. The Court could also have directed the doctor to pay a fine which could then have been ordered to have been paid to the heirs of the deceased. But having come to the conclusion that there was no causal link between treatment and injury (in this case death) the doctor could not have been punished for negligence.

 

In Shyam Sunder vs. State of Rajasthan,[22] the doctrine of res ipsa loquitur was again discussed. The normal rule is that it is for the plaintiff to prove negligence, but, in some cases, considerable hardship is caused to the plaintiff, as the true cause of the accident is not known to him, but is solely within the knowledge of the defendant who caused it. The plaintiff can prove the accident but cannot prove how it happened (so as) to establish negligence on the part of the defendant. This hardship is sought to be avoided, in certain cases, by invoking the principle of res ipsa loquitur, where the thing is shown to be under the management of the defendant or his servants, and the accident is such, as, in the ordinary course of things, does not happen if those who have the management use proper care, then it affords reasonable evidence, in the absence of an explanation by the defendant, that the accident arose from want of care.

 

In Jasbir Kaur vs. State of Punjab[23] the Petitioner’s newborn child’s eye was gouged out by a cat that crept into the ward. The infant was kept in a separate room under the charge of the Petitioner’s relatives, as there was a shortage of cots. It was contended by the Respondent Government hospital that the incident took place because of the Petitioner’s relative’s negligence in leaving the child alone. The Court applied the doctrine of res ipsa loquitur and held the hospital and State negligent. The safety and protection was under the control of the hospital and such an incident would have not have occurred in the ordinary course of things but did so, only because of the negligence of the hospital.

 

What happens when there is a difference of opinion amongst experts concerning the line of treatment to be adopted? In Vinitha Ashok vs. Lakshmi Hospital[24] the Appellant’s uterus was removed because of excessive bleeding during a surgery for termination of pregnancy that was discovered to be cervical pregnancy. The Appellant alleged that had a sonography been performed the nature of the pregnancy would have been determined and

she would not have had her uterus removed. The Supreme Court observed that there was a difference of opinion among medical experts on whether ultra sonography could determine cervical pregnancy. The Appellant showed no symptoms of cervical pregnancy and there was no reason for the Respondent doctor to suspect that and resort to a different course of treatment. In Kerela removal of uterus was recommended for tackling excessive bleeding in case of cervical pregnancy, and in the instant case the Respondent had to resort to it to save the Appellant’s life. The Supreme Court, thus, held that the course adopted by the Respondent doctor was reasonable and although the risk involved might have called for further investigation, the Respondent doctor’s view could not be dismissed as being illogical. A difference of opinion amongst experts on procedure adopted by a doctor cannot be called negligence if the procedure adopted is commonly in practice in an area.

 

A totally free treatment in a place which gives free treatment to everybody may not entitle the complainant to approach the Consumer Court. But he would still be entitled to approach the District Court by filing a suit for damages. In S. Mittal vs. State of U.P.[25] the Court was concerned with negligence in eye camps. An eye camp was organised for extending expert ophthalmic surgical treatment to patients of a particular place in Uttar Pradesh. The operated eyes of several patients were, however, irreversibly damaged, owing to post-operative infection of the “intra ocular cavities of the eyes”, caused by normal saline used at the time of surgery. A public interest litigation was filed, praying (apart from other relief) for compensation to victims for negligence in the arranging of the eye operations. The Supreme Court directed the State Government to pay Rs. 12,500 compensation to each victim (in addition to Rs.5, 000 already paid). The Supreme Court observed that (a) It was no defence, that the treatment was gratuitous or free. (b) The State Government would be liable for negligence in such activities.

 

In Eby Minor vs. GEM Hospital,[26] a newborn child developed gangrene because of which his hand below the elbow had to be amputated. He was a new born premature child placed in an incubator in the Respondent hospital. The National Commission found that there could have been no cause for gangrene except infection which could only have been contacted due to the negligence of the hospital. A compensation of Rs. 1, 00,000 was awarded.

 

Does the non-conduct of necessary pre-operative tests amount to negligence? This was the issue before the National Commission in Dr. Kaligoundon vs. N. Thangamuthu.[27]The Complainant’s wife had gynecological problems in terms of excessive bleeding. She was operated upon and her uterus removed. After this, she complained of giddiness and vomiting and died. The death certificate gave the cause of death as renal failure and septicaemia. The National Commission found the doctor guilty of negligence on the ground that despite there being no urgency in undertaking the surgery no tests were conducted prior to the surgery to assess renal functioning.

 

Similarly, in S.V. Panchori vs. Dr. Kaushal Pandey[28] the Commission held that omission to do a routine investigation constitutes deficiency in service.

 

The other issue which the Courts have been concerned with relates to the use of medical literature in dealing with medical negligence cases. Can such literature be used to prove or disprove the findings of negligence? In P.Venkatalaxmi vs. Dr. Y. Savitha Devi[29]the National Commission observed that the ground reality was that rarely did doctors testify against doctors and therefore there was nothing wrong in using medical literature for determining a case.

 

Can a hospital be held guilty of negligence if it does not have adequate infrastructure? In T. Vani Devi vs. Tugutla Laxmi Reddy,[30] the Complainant’s wife died in the nursing home where she was admitted for delivery. When she started bleeding no proper care was taken. The National Commission found that the nursing home was not equipped to deal with emergencies nor it had any arrangements to deal with emergencies and as such was guilty of negligence. The Consumer Forum has, however, held that if beds are not available in a hospital, refusing admission to the patient does not amount to deficiency in service. In Bhajan Lal Gupta vs. Mool Chand Kharati Ram Hospital[31] when the patient was refused admission and asked to go to another hospital due to non-availability of beds, the National Forum held that this did not amount to deficiency in service.

 

The issue of informed consent has been much litigated in foreign jurisdictions. The National Commission was confronted with this issue in the case of Dr. P.S. Hardia vs. Kedarnath Sethia[32]. The Complainant lost his eye due to a surgery which was not an emergency surgery. The Court found the doctor negligent on the basis that performed an operation which was totally unnecessary and also held that simply taking signature on a form stating “to treat him at his own risk under expressive consent” did not absolve the doctor from taking a more detailed and direct consent especially when there was no emergency.

 

Is a doctor responsible for the negligence of his nurse? In K.G.Krishnan vs. Praveen Kumar (minor),[33] the minor was admitted to a hospital with fever. He was given a paracetomal injection by the nurse in such a way that his right side was paralysed. The nurse was not joined as a party to the case but the National Commission held that the nurse was the employee of the doctor and as such the doctor was vicariously liable for her negligence and directed the doctor to pay compensation of Rs. 1 lakh.

 

Is a hospital liable for the negligence of its doctors? In Savita Garg vs. Director, National Heart Institute[34] the Appellant’s husband was admitted to the National Heart Institute and according to the Appellant her husband died due to negligence of doctors and nurses treating him. The National Forum dismissed her case as she had not joined the treating doctors and nurses as parties to the case. She approached the Supreme Court. The

Supreme Court, in this landmark decision held the following:

 

􀁺 It was not necessary to join the treating doctors or nurses as parties as long as the

hospital was made a party;

 

􀁺 Only the initial burden of proving negligence is on the Complainant. After this,

it would be for the hospital to show from records, etc. as to what care and treatment

were given. It is for the hospital to satisfy that there was no lack of care or diligence.

 

􀁺 The hospital is responsible for the acts of their permanent staff as well as staff whose

services are temporarily requisitioned for the treatment of patients.

 

The Supreme Court remitted the case back to the National Forum for trying it on merits.

 

Does the failure to monitor dosage of drugs amount to negligence? In Mohd. Ishfaq vs. Dr. Martin D’souza[35], the patient was put on haemodialysis and was asked to undergo a kidney transplant. He was administered amicacin 500 mg injections twice a day for 10 days at the end of which he lost his hearing totally. The National Commission held that it was the responsibility of the hospital to monitor the patient and modify the dosage as per the available literature and failure to do so amounted to negligence. The patient was ordered to be paid Rs. 4 lakh as compensation for treatment and Rs. 2 lakh towards the mental agony suffered by him.

 

Can a doctor charge for facilities he does not offer? In R.M. Joshi vs. Dr. P.B. Tahilramani[36] the State Commission ordered the recovery of bed charges when the patient was made to sleep on a table amounted to deficiency in service. Can a doctor be charged for performing a surgery, which is not necessary? In Uttaranchal Forest Hospital Trust vs. Smt. Raisan[37] the complainant’s organ was removed. When the organ was sent for diagnosis no cancer was found. The State Commission found the doctor guilty of negligence for performing a surgery that was wholly unnecessary.

 

Does the failure of a procedure undertaken by a doctor imply that he was negligent? The Supreme Court has categorically said no. In State of Punjab vs. Shiv Ram[38] the Supreme Court was dealing with a case where sterilization had failed and the woman gave birth to a child. This was in a State hospital. The State argued that there was always a small chance of failure in such procedures and the failure of sterilization did not mean that the doctor was negligent. The Supreme Court upheld this argument and cited with approval a decision of the English Court in Eyre vs. Measday[39] in which the Court had observed:

 

In the absence of any express warranty, the Court should be slow to imply against a medical man an unqualified warranty as to the results of an intended operation, for the very simple reason that, objectively speaking, it is most unlikely that a responsible medical man would give a warranty of this nature.

 

Conclusion

 

Cases of medical negligence are rising rapidly especially in the consumer courts. However getting fellow doctors to testify even in cases which are self evident is a very difficult task. With the recent decisions of the Supreme Court in matters concerning criminal negligence, it is going to be even more difficult for doctors to be prosecuted under the criminal law.

 

Though no such reliable standard has emerged by which a physician can avoid liability with certainty, there are precautions that a physician can take to ensure that the information provided to the patient falls within the ambit of informed consent. In India, this duty has to be fulfilled with even more care due to level of illiteracy, and poor medical awareness amongst the population even among the urban educated classes. It is the duty of the doctor to explain the method of treatment and the risks involved in a language and manner that the patient can understand .Merely paying lip service to the law does not absolve the doctor of his duties in this regard. The very fact that the patient visits doctor establishes a relationship in which doctor has the duty of disclosure. As in cases of negligence, no uniform standard can emerge, as a practice of medicine is extremely case specific. Doctors are trusted to exercise this discretion in the interest of the patient under the exception for therapeutic privilege. The standard of what constitutes informed consent itself being so ambiguous it is even more abstract in the light of such an exception. To determine how much information should be divulged to the patient the mental state of the patient at that point of time is crucial. Therefore, courts have to examine the circumstances surrounding the treatment of the patient before drawing conclusions .The question that also arises is what is the level of informed consent if there was only one possible course of treatment and the chances of survival are low? In such a case informed consent may even assume more importance as the risk to the patient increases.

 

What constitutes ‘informed consent’ is yet to be settled, though a number of cases concerning informed consent have been coming up in the courts Majority of the successful cases have been those where the Courts are not required to go into complicated medical evidence. They have repeatedly held that a doctor is liable only if the line of treatment prescribed by him was not a recognized method altogether. Many cases have been rejected by the Courts on the basis that medical experts had not testified in support of the Complainants. While it is not essential that medical experts testify in all cases, this becomes important in complex medical negligence cases. Even now, it is difficult to get doctors to testify against their brethren and this will be an important task to be taken up in the next few years. Also, by and large the Medical Councils’ performance in cases pertaining to medical negligence requires much to be desired but it is a remedy which should not be ignored.

 

PATIENT’S RIGHTS

 

1. You have a right to be told all the facts about your illness; to have your medical records explained to you; and to be made aware of risks and side effects, if any, of the treatment prescribed for you do not hesitate to question your doctor about any of these aspects.

 

2. When you are being given a physical examination, you have a right to be handled with consideration and due regard for your modesty.

 

3. You have a right to know your doctor’s qualifications. If you cannot evaluate them yourself, do not hesitate to ask someone who can.

 

4. You have a right to complete confidentiality regarding your illness.

 

5. If you are doubtful about the treatment prescribed and especially an operation suggested, you have a right to get a second opinion from any specialist.

 

6. You have a right to be told in advance, what an operation is for and the possible risks involved. If this is not possible because of your being unconscious or for some other reasons, your nearest relatives must be told before they consent to the operation.

 

7. If you are to be discharged or moved to another hospital, you have a right to be informed in advance and to make your own choice of hospital or nursing home, in consultation with the doctor.

 

8. You have a right to get your case papers upon request.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Medical Malpractice

Generally, the term "malpractice" refers to the negligence of the member of a profession. The term "medical malpractice" refers to the professional negligence of doctors, surgeons, nurses and other healthcare professionals.

Medical malpractice occurs when medical care provided by a healthcare professional falls below the accepted standard of care within their field of practice (Breach of the Accepted Standard of Care) and, as a result (Causation), the patient is caused to suffer damages in the form of personal injury, economic injury, and/or wrongful death (Damages).

What has to be Proved in a Medical Malpractice Lawsuit?



The Three Elements Required:

1. Breach of Duty,

2. Causation, and

 3. Damages .

If any one (or more) of the above elements is missing, then there cannot be a valid cause of action for medical malpractice. In addition, if any one (or more) of the three elements is not proved at the trial of a medical malpractice lawsuit, then instructions given to the jury by the Judge will require the jury to return a verdict in favor of the defendant doctor and against the person suing the doctor.

Breach of the Accepted Standard of Care

Acts or Omissions May Constitute a Breach of the Accepted Standard of Care

The term "breach of the accepted standard of care" refers to a failure of a doctor, surgeon or other medical or health care professional to fulfil his or her duty always to meet or exceed the accepted standard of care within their professional field of practice. The duty of a medical care professional to meet or exceed the accepted standard of care always is in effect.

A medical care professional may "breach" his or her duty to meet or exceed the accepted standard of care if they fall below the accepted standard of care through either an "act" (actively did something wrong, like perform a gastric bypass surgery on someone who was only 50 pounds overweight and, therefore, was not a proper candidate for the surgery) or through an "omission" (failed to do something right, like diagnose a malignant, cancerous tumor when it was plainly visible on an x-ray at an early stage when it could have been treated successfully with full recovery).

Not every failure to meet or exceed the accepted standard of care supports a claim for medical malpractice, surgical malpractice or professional negligence. The other two elements, "causation" and "damages" also must exist and be provable. Causation and Damages can be interrelated, as you will see.

Causation

Direct and Proximate Cause

Causation is what it sounds like. For the causation element of a medical malpractice case to be met, the breach of the accepted standard of care within the field of professional practice must "cause" something bad to happen (legally compensable damages). Consider the example on the "breach of the accepted standard of care" page where the doctor failed to diagnose a malignant, cancerous tumor when it was plainly visible on an x-ray at an early stage when it could have been treated successfully with full recovery. Assume that if the doctor identified the tumor on the x-ray and diagnosed the person with cancer at such an early stage that the person could have been treated and would have recovered fully from the cancer. Instead, the cancer went untreated and the person died as a result. In such a case, the failure to diagnose the cancer at its early stage when the tumor was visible on the x-ray constitutes a breach of the accepted standard of care within the professional medical field of radiology. The breach of the accepted standard of care was the cause of the wrongful death of the person because, but for the doctor's failure to diagnose the cancer, the person would have been treated and would have fully recovered. The breach of the accepted standard of care was the cause of the wrongful death.

There are times, however, that a doctor's breach of the accepted standard of care, thankfully, does not cause personal injury or wrongful death. For example, consider the example above about the doctor's failure to diagnose a malignant cancerous tumor. But, instead of the cancer being at an early stage and treatable, assume that the x-ray was taken after the cancer had spread throughout the person's body and was not treatable at the time of the x-ray. Then, assume that a week later, another doctor reviewed the x-ray, identified the tumor, and diagnosed the person as suffering late-stage, untreatable cancer. While the first doctor who misread the x-ray and failed identify the tumor and to diagnose the cancer clearly failed to fulfil his duty to meet or exceed the accepted standard of care within his professional field, his breach of the accepted standard of care was not the "cause" of an injury. In this example, even if the doctor had diagnosed the malignant, cancerous tumor a week earlier, there was nothing that could have been done to treat the person with late stage, incurable cancer. Similarly, in this example, no "damages" were suffered because the breach of the accepted standard of care in failing to diagnose the cancer a week earlier did not cause any change for the worse in the person's condition. Also, diagnosing the cancer a week earlier, in the example, could not have resulted in any change of the person's condition for the better.

 

 

Medical Malpractice Damages

The term "Damages" as an element of a medical malpractice case refers to those things for which the law allows the victim or his or her family to collect money compensation. There are two main types of damages; economic damages and non-economic damages.

Economic Damages

Economic damages from medical malpractice, surgical malpractice or professional negligence are objectively identifiable money damages which can be calculated such as out-of-pocket expenses incurred as a result of the medical malpractice, surgical malpractice or professional negligence and lost wages caused to be suffered as a result of the medical malpractice, surgical malpractice or professional negligence.

Economic damages may include past or future out-of-pocket expense and wage loss "caused" by the "breach of the accepted standard of care."

Out-of-Pocket Expenses

Expenses incurred may be in the form of hospital bills, medication bills, nursing care bills, therapy bills, medical appliance costs (such as a wheel chair), and construction costs associated with making one's home wheel chair accessible, to name a few. These types of economic damages caused by medical malpractice, surgical malpractice or professional negligence are referred to as out-of-pocket expenses, even though the "pocket" out of which they are paid often is the "pocket" of a health insurance company, medicare. or medicaid.

Lost Wages

The out-of-pocket expenses listed above constitute one type of economic damages which can be caused by medical malpractice, surgical malpractice or professional negligence. The other type of economic damages that can be caused by medical malpractice, surgical malpractice or professional negligence are related to lost wages. The term "lost wages" refers to that sum of money that and person who suffers personal injury or wrongful death as a result of medical malpractice, surgical malpractice or professional negligence would have earned, both past and future, had they not been the victim of medical malpractice, surgical malpractice or professional negligence resulting in personal injury or wrongful death.

Non-Economic Damages

Non-economic damages are those damages suffered which do not refer to an out-of-pocket expense or lost wages. Non-economic damages include the emotional pain, suffering, and anguish that are inflicted on the victims of medical malpractice, surgical malpractice or professional negligence.

Indian Journal of Medical Ethics

 

Medical Councils in India

 

The National Human Rights Commission (NHRC) has sent a notice to the Medical Council of India (MCI) asking it to reveal its stand on the ethics of sex- selective abortions.

Though Parliament unanirnously passed the Regulation of Prenatal Diagnostic Techniques Bill in August 1994, the act is yet to be implemented as the rules have not yet been published and the infrastructure required for implementation has not been set up so far.

If the Act remains unimplemented, the only option to curb the menace will be through internal regulation by the medical community. Ironically, MCI, the apex body constituted to regulate medical practice and uphold medical ethics in the country, has maintained a mysterious silence on this issue. Action by NHRC might help nudge the MCI to take a stand.

The important social phenomenon of a continuing decrease in India’s sex ratio from 972 in 1901 to 929 in 1991 has attracted worldwide attention and shaken everyone except the MCI and its state branches. For them the issue is still insignificant. As the central committee on sex determination noted, ‘In fact, the need for legislation on the matter of sex determination would perhaps not have arisen had the medical councils taken note of this controversy and taken timely steps to lay down wholesome principles for the guidance of the profession in keeping with the interests and demands of society. ’

In the past newspapers have published vivid accounts of the open rigging, misconduct and violation of rules and procedures that take place during elections to the Maharashtra Medical Council. For a long time, the medical councils have acted as ‘irresponsible trade unions’, upholding the interests of medical professionals over those of the medical profession and of society. It is time to initiate the long process of overhauling the councils.

The central committee on sex determination has suggested restructuring the medical councils and the nomination of a few non- medical social thinkers and public representatives on these committees to sensitise them to social problems. It has also recommended legal changes to enable the government or members of the public to refer specific problems and cases to them to seek their opinion and take effective action against the guilty within a specified time frame.

The medical code of ethics is another area that needs closer scrutiny. This code needs to be continuously discussed, debated and updated in accordance with the newer challenges facing the medical profession. In the absence of a vibrant, participatory ethos and genuine concern about upholding medical ethics the code will become a dead document.

The basic problem with the medical councils is their lack of accountability and their insensitivity. This is what the NHRC should address. (The author was a member of the Government of India’s expert committee on sex- determination tests.)

Medico- legal autopsies, MCI and state medical councils 



The NHRC has suggested that medicolegal autopsies be recorded on video- tape as reports on the findings are often ‘manipulated to suit vested interests’. The commission noted that mortuaries are generally very badly run with ‘sweepers actually doing the post- mortem examinations’ .

Dr. Bishnu I& mar of the MCI informed the NHRC that it is the state medical councils that can initiate action against errant doctors and that the MCI has no control since the states are governed by their own acts. He admitted that the majority of the states have not followed MCI guidelines.

False report



Mr. Raghu Nath Bhattacherjee, sub- divisional magistrate, Srirampur court in Hooghly district passed a severe stricture against Dr. P. G. Bhattacharjee of Walsh Hospital for his incorrect post- mortem report on the deceased Sambhu Ghosh (65) who died in the hospital on the night of May 6.

It was stated in court that the deceased Sambhu Ghosh was fatally assaulted by his younger brother, Shyama Pada Ghosh and three others after he had refused to transfer his property in the name of his brother. Mrs. Chhabi Ghosh, wife of the deceased, alleged that the four accused influenced Dr. Bhattacharjee to issue a post mortem report in their favour, certifying that Sambhu Ghosh had died after a heart attack. The inquest revealed that Sambhu Ghosh had received multiple injuries.

 

Legitimising poor medical education



The Bombay University has granted affiliation to certain private medical colleges in New Bombay although they lack the requisite infrastructure to conduct an MBBS course. Some of them are even recognised by the Medical Council of India (MCI), the apex medical body in the country.

Terna Medical College, owned by Congressman Padamsinh Patil opened in December 199 1. It still does not have a building of its own. At present classes are held at the CIDCO school at Airoli.

The Mahatma Gandhi Mission (MGM) College at Kamothe, owned by ex- Congressman Kamal Kishore Kadam, has recently been approved for recognition by MCI, a fact that has surprised several medical professors. An important criterion for recognition by MCI is that the college must be attached to a hospital with 700 beds. The MGM claims to have four hospitals, besides being attached to the Shastri Nagar Hospital, Dombivli. The trust’s hospitals are ‘token institutes’ with hardly any patients. At the Kamothe Hospital these reporters counted 100 beds though the hospital claims a bed- strength of 500. At that time just 20 patients were admitted. A well- placed source at MCI said, ‘Bed occupancy must be checked before granting recognition. ’

This paucity of patients affects the final year students who are required to study a variety of cases. ‘We mainly get highway accident cases in this hospital.’ they lamented,‘Those of us who can afford it take tuition in medicine and surgery from doctors in Sion Hospital.’ These students pay between Rs. 30,000 and 80,000 per subject per term as fees towards this private tuition.

Euthanasia in Australia

An Anglican church leader warned that voluntary euthanasia laws passed in Australia’s Northern Territory could threaten people considered a burden to society. The law permits terminally ill patients to end their lives with medical assistance after an assessment from two doctors, including one with a diploma in psychological medicine and a cooling- off period.

‘On the face of it, it looks like an exercise in compassion, but it has serious longterm implications for our attitudes to human life, ’ said Anglican Church Primate of Australia, Keith Rayner. He predicted that the circumstances in which killing was allowed would gradually and imperceptibly be widened. ‘Those who are economically burdensome or who have no obvious contributions to make to society will be at risk, ’ he said.

The national daily, The Australian, said in an editorial that the Northern Territory had begun ‘a journey into uncharted waters’ , adding that the law could have ‘unforeseen side- effects. The Northern Territory has put itself in the forefront of a very small constituency. The evidence is not yet convincing that the benefits of this sort of legislation will outweigh the potential for abuse. ’ The Sydney Morning Herald warned that ‘what sounds good in theory is fraught with danger in practice. A patient receiving treatment for the pain of a terminal illness is not in a good position to judge clearly and can be influenced.

Negligence during renal transplant

The police have registered a case against four doctors of a private nursing home (in Amritsar) for allegedly transplanting the kidney of a HIV- infected person into the body of a 25 year- old youth, Balwinder Kumar. The youth later died.

Balwinder’s father, Mehar Chand, was reportedly made to purchase a kidney for his son for Rs. 30,000 from a donor in Delhi who was eventually found to be HIV- infected. The doctors allegedly did not test the donor for HIV infection. After the kidney had been transplanted he was found to be HIV- positive. The report of the district grievances officer cast aspersions on the conduct of the nursing home authorities after it was found that they had tampered with the official records to cover up the evidence against them and blamed them for ‘playing with the life of the patient’.

Complaints on medical negligence - a Catch 22 situation



Pursuing cases of medical negligence against doctors/ hospitals in consumer courts is, of late, a tough task. Complainants are faced with a choice between bringing a medical expert’s opinion supporting their case or face dismissal of their complaints.

The basic rule of evidence places the onus of proving allegations made in the complaint squarely on the complainant. In most instances, the complainant does not have access to case papers maintained by the doctor or the hospital. The complainant’s demand for copies of such papers are often turned down by hospitals. In the absence of medical records it is difficult for the complainant to get a medical opinion. One wonders about the fairness of the basic rule of evidence which requires the complainant to prove the allegations.

There is a well- known exception to the rule of evidence - res ipsa loquitur (the evidence speaks for itself). Where a patient has been admitted for minor surgery and dies in the operation theater, the consumer court can invoke res ipsa loquitur to benefit the complainant. The doctrine shifts the onus of proof to the other side who must show that all reasonable precautions were exercised.

More on lack of consumer protection

The absence of a supreme court verdict on whether complaints against medical negligence can be decided by consumer courts is leading to ambiguity on the status of such disputes in these forums. The Bombay high court temporarily stayed negligence proceedings against a Kandivli doctor, Kakubhai T. Masrani, at the state consumer disputes redressal commission. At least three cases of medical negligence in this forum have been stayed by the high court over the last six months. In Delhi 10 cases have been stayed. One of these pertains to a toddler who was given an injection based on a wrong prescription and has become a spastic.

The clause of the Consumer Protection Act (CPA) under dispute is the definition of the term ‘service’. The Act states ‘service means service of any description which is made available to potential users’. However, it adds, ‘It does not include the rendering of any service free of charge or under a contract of personal service’. It is being argued that the patient enters into a contract of personal service with the doctor.

The complexity of the situation is compounded by differing judgements delivered by the National Commission and the Madras High Court. Mr. Justice Balakrishna Eradi of the National Commission had ruled that doctors are covered by the CPA. The Madras High Court (Subramaniam vs Kumaraswamy 1994) has ruled that medical practitioners do not come under the purview of CPA.

Death due to the negligence of doctors



Two doctors in Caliufia have been recently sued in two different= cases of negligence resulting in death.

Gopal Chatterjee submitted a complaint at a police station at a police station here holding M. C. Seal responsible for the death of his 19- year- old daughter during vascular surgery on her right leg.

Dr. Chatterjee insisted on a post mortem examination which revealed callousness on the part of Dr. Seal’s team. The autopsy led to Dr. Seal’s arrest.

This case has come close on the heels of the conviction of another city doctor. On this May 10, S. S. Mall, a noted cardiothoracic surgeon, was sentenced to two years rigorous imprisonment for criminal negligence in the treatment of a four- anda- half year old girl, Papri De, who died on February 24, 1991 in the Calcutta Medical Research Institute (CMRI).

In a city where hospitals are hellholes, Dr. Mall’s conviction came after a long battle for justice waged by Papri De’s parents. Papri had accidentally swallowed a plastic pencil cap with which she was playing. The cap stuck in the trachea. The Calcutta Medical College and Hospital, where Papri was first taken, did not have a bronchoscope. The SSKM Hospital had a bronchoscope but it was not in a working condition. The child was finally taken to the expensive CMRI. For more than four hours the child cried and gasped for breath in her mother’s lap. Dr. Mall, under whom Papri was admitted, arrived at 9.30 p. m. He did not perform the bronchoscopy recommended by the doctors at SSKM. Instead, he gave the child three injections of Calmpose and Decadron and left. After overcoming the shock of their daughter’s tragic death, the parents resolved to see the doctor punished.

Unnecessary panic



‘Pawan Beria M. B., DCH’, said the sign outside the good doctor’s consultancy in Gokuldham, Goregaon. Impressive? Not quite, as events were to show.

On a miserable monsoon day, with the rains a constant backdrop, a colleague’s sister stood outside the clinic with her eight- month- old baby who was suffering from a congested chest.

Dr. Beria, M. B., DCH examined the baby and called for an Xray. With that in hand he set off alarm bells. The infant will have to be admitted immediately, he said. There was not a moment to lose. He needed I. V. antibiotics, lung suction and a broncho- dilator.

Hearing all this, the mother was distraught but insisted on a second opinion. Dr. Beria, M. B. ,DCH again reiterated how precious every minute was and immediate admission was the only answer.

The cost of all this? A cool Rs. 300 a night upwards for a bed, with the medication to be billed later.

Despite the good doctor’s exhortation, a second opinion was sought. The baby was examined at Wadia Hospital. No admission, no fancy medication. Even antibiotics were discontinued after a day.

Pawan Beria, M. B., DCH - one of a fast- multiplying breed of ‘meritorious’ medicos who owe allegiance to the ‘hypocritic oath’ - didn’t quite pull it off this time.

 

Doctors’ strike



President of the Ambejogai unit of Maharashtra Association of Resident Doctors (MARD), A. M. Ghopchade, has confirmed that 49 patients died during the doctors’ strike at the Swami Ramanand Teerth hospital at Ambejogai, Beed district in June.

He, however, held the hospital administration responsible for the deaths. He told this newspaper that 107 doctors of the hospital owing allegiance to MARD had gone on strike from June 7 to 26. ‘We had given two days’ notice to the hospital administration so that they could make alternate arrangements to look after the patients. But the administration brought in only 17 doctors, ’ Dr. Gopchade said.

Dr. Gopchade denied that the striking doctors had behaved irresponsibly. ‘If we were not bothered about the patients, we would not have opened a parallel OPD, ’ he reasoned.

Fees charged by nursing homes



How much should the owner of a nursing home charge for services rendered? According to the Association of Medical Consultants of Greater Bombay, a nursing home with ten beds needs to charge at least Rs. 375 per bed per day to break even. This takes into account the cost of purchase of premises (estimated at Rs. 32,00,000), bank interest on loans, the cost of equipment, salaries and sundry other expenses.

An article in the association’s quarterly journal, Grasp, mentions that most nursing homes in the suburbs charge not more than Rs. 150 to Rs. 200 per day per bed. What it conveniently overlooks is that these establishments, and the bigger private hospitals, make their money under other heads as the brother of a peon in a small private firm discovered recently.

Mr. Ramdas Parab, who was admitted to the Guru Nanak Memorial Hospital in Bandra for just one night last month had to shell out more than Rs. 6,000 though the charges for the bed were only Rs. 100. The surgeon’s fee was Rs. 2,000, the anaesthetist pocketed another Rs. 900, while the charges for the operation theater were Rs. 1000 among other charges.

The poor man had to get himself discharged and move to the K. B. Bhabha Municipal Hospital the next day, where he was successfully treated and sent home in good shape after a few days.

 

Demi- god doctors



Our doctors, most of them I must say, are not careful while administering medicines to patients, conducting surgeries or even examining a patient. They consider themselves demi- gods and expect to be thus treated. It is a bad day for the patient who wants to know what the doctor has prescribed. Why, a patient who consults a specialist after having gone to another has to face the wrath of the specialist. Not only will he be ill- treated but he will also be administered medicines that the first doctor has advised against. Even having done so, should the medicine have side- effects, the doctor is not to be blamed for they are but the high and the mighty who are not answerable to anybody at all.

I just hope Indian doctors read this and mend their ways.

To err is human but who will own responsibility?



Mrs. Rajeswari Ayyappan, mother of the film star Sridevi, underwent surgery for an intracranial tumour. The neurosurgeon at Sloan- Kettering Hospital operated on the wrong side of the brain. This has prompted a review on who is to be made answerable for such blunders.

While it is understandable that doctors should feel sympathetic towards erring colleagues, redress in some form must be made to the patient. If, however, society is very strict, doctors will be chary to touch life- or- death cases. Too much leniency may make them thoughtless. Where does one draw the line between too strict an approach and undue leniency?

Dr. V. N. Shrikhande, chief general surgeon, Bombay Hospital feels that compensation is a concept alien to us in India. He suggests the creation of special cells composed of equal numbers of doctors and others where such issues are decided. The grievance should be addressed to the Medical Council of India but ‘unfortunately, it is not functioning satisfactorily’.

Doctors all over India share a remarkable unanimity of opinion on points related to this issue. They do not want their profession regulated by amateurs; neither do they want it besmirched by negligent and unethical practices. The most respected among them have developed their own individualistic methods for ensuring safety but recognise that such codes cannot be easily taught or enforced.

The legal opinion differs. Mr. Prasantha Kumar Sinha, Government Pleader, City Civil Court, Calcutta feels that the apprehension that doctors have about the Consumer Forum is unfounded.

It is curious, but true, that the senior doctors this correspondent interviewed were circumspect for the record. Off it they were scathing in their remarks about the medical profession ‘as practised by many.

Dr. Z with an excellent practice in Madras was frank. ‘There is an assemblyline type of procedure followed in many hospitals. The junior doctor admits the patient at night. The registrar or whoever gets the tests done. The anesthetist prepares the patient for surgery. And the consultant breezes into the operation theater and cuts him up. Often surgeons operate on xrays and scans, not on the patient. ’

Dr. B. S. Das, head of the department of neurosurgery at NIMHANS, Bangalore was critical of such an approach. ‘A doctor - especially a surgeon - must see the patient, review the situation and make a decision. Operating without examining the patient is not right. ’

Dr. Z continued: ‘There is honour among thieves. Now that medico- legal suits are in vogue, a medico- legal nexus is building up. I get lawyers and their touts coming to me and asking for examples of medical negligence. At times there is a conspiracy between the doctor and the patient. The patient sues. The insurance company pays. Patient and doctor share the proceeds.

To the poor it very often seems that they are always asked by the medical profession to give much more than is due. Patients with headaches are now almost always asked to undergo brain scans. Doctors in private hospitals are often hauled up for not sending patients with simple injuries for elaborate investigations.

The surgeon must ensure that neither the patient’s throat nor his own is cut when he reaches out for the scalpel.

Medical Negligence vis - à - vis Medical Profession in Changing Scenario

Abstract

Since long the medical profession is considered as highly respected and a nobel profession. But today a decline in the standard of medical profession can be attributed to increasing number of litigations against doctors for medical negligence. Health services being brought under the purview of consumer protection act (CPA) and subsequent commercialization has had adverse effects on doctor-patient relationship.

The recent Honorable Supreme Court’s judgement on medical negligence (Jacob Mathew V. State of Punjab) is laudable in medical community but the need for corrective steps by individual doctors and controlling body i.e. Medical Council of India is utmost necessary in changing scenario. Against all odds the medical community must rise to the occasion and strive to maintain the honour and the nobel status of this sacred profession.

Key words: Medical Negligence, Medical Profession, CPA, Doctor-patient relationship

Introduction

The Consumer Protection Act was passed by Government of India in1986 to protect the interest of the consumer. The CPA has defined ‘Consumer’ and ‘Service’ in detail.1 The judgments given by different High Courts regarding the question whether the services rendered by the medical practitioner would come under the purview of ‘Service’ as envisaged and defined under CPA were conflicting. In 1995, the Supreme Court decision in Indian Medical Association v VP Shantha brought the medical profession within the ambit of a ‘Service’ as defined in CPA 1986.2 With the introduction of CPA, followed by Supreme Court landmark judgment, increased numbers of litigation were made against doctors by dissatisfied relatives, as it was now easy to file a complaint under CPA. Today it’s a common observation that medical practitioners and hospitals are being attacked by the relatives of the patient/deceased person for alleged medical negligence of the doctors.

An attempt is made to introspect medical profession with regards to doctor-patient relationship in the light of recent Honorable Supreme Court’s (landmark) judgement (Jacob Mathew v. State of Punjab) and to rejuvenate medical professionals to maintain the nobel status of the profession.

Negligence

Negligence is a type of tort or delict that can be either criminal or civil in nature. Negligence is the breach of duty caused by omission to do something which a reasonable and prudent person guided by those considerations which ordinarily regulates human affairs would do or doing something which a prudent and reasonable person guided by similar considerations would not do.3

Negligence by Professional

Professionals such as doctors are persons having special skill and knowledge and possess such requisite qualifications that they will profess their skill with reasonable degree of care and caution.

Medical negligence is defined as want of reasonable degree of care or skill, or willful negligence on the part of medical practitioner in the treatment of patient with whom a relationship of professional attendance is established, so as to lead to bodily injuries or to loss of life.4

The essential components for liability for negligence are as follows.

  1. The existence of a duty to take care, which is owed by the defendant (doctor) to the complainant (patient).
  2. The failure to attain that standard of care, prescribed by the law, thereby committing a breach of such duty and
  3. Damage, which is both causally, connected with such breach and recognized by the law.

Duty of Care

The word ‘duty’ connotes the relationship between one party and another, imposing on the one an obligation for the benefit of that other to take reasonable care. The duties, which a doctor owes to his patient, are clear. A person who holds himself out ready to give medical advice and treatment impliedly undertakes that he is possessed with skill and knowledge for the purpose. Such a person when consulted by a patient owes him certain duties.

  1. A duty of care in deciding whether to undertake the case.
  2. A duty of care in deciding what treatment to give.
  3. A duty of care in the administration of that treatment.5

The standard of care and skill is that of the reasonable average. He need not possess the highest nor a very low degree of care and competence.

Proof of Negligence

A doctor should not be held negligent simply because something goes wrong. He should not be held liable for mischance and/or for taking one choice out of two or favouring one school rather than another in choosing as to what treatment is to be given to patient. He is only liable when he falls below the standard of reasonable competent practitioner with equal skills. The standard of reasonable care is a flexible criteria capable of setting the boundaries of legal liability of the professionals depending on the duties founded on principles of torts or contracts. The ‘negligence’ is not an absolute term, but is a relative one; it is rather a comparative term. No absolute standard can be fixed and no mathematically exact formula can be laid down by which negligence or lack of it can be infallibly measured in a given case. What constitute negligence varies under different conditions and in determining whether negligence exist in a particular case, all the attending and surrounding facts and circumstances have to be taken into account.6

In case of Bolam v Friern Hospital Management Committee (1957)7 the test for establishing medical negligence was set out. The doctor is required to exercise the ordinary skill of a competent doctor in his or her field. He or she must exercise this skill in accordance with a responsible body of medical opinion skilled in that area of medicine. A doctor is not negligent if there is another responsible body of medical opinion who would have acted in the same way as the treating clinician.

Criminal Negligence

Criminal negligence means recklessly acting without reasonable caution and putting another person at risk of injury or death (or failing to do something with the same consequences)8

Criminal negligence applies to medical practitioner when he shows gross negligence in the treatment of patient leading to severe injury or death. The doctor should not be held criminally responsible for the patient’s death unless his negligence or incompetence shows such disregard for the life and safety of the patient as to amount to a crime. The most important criterion is the degree of negligence required to prosecute medical practitioner under the charge of criminal negligence which should be gross one or of very high degree.

The recent Supreme Court judgment (Jacob Mathew v state of Punjab)9 have provided safe guards for doctors. The Supreme Court states that the criminal prosecutions are filed by private complainants and sometimes by police on FIR being lodged and cognizance taken. The investigating officer and the private complainant cannot always be supposed to have knowledge of medical science so as to determine whether the act of the accused medical professional amounts to rash or negligent act within the domain of criminal law under Section 304-A of IPC. The criminal process once initiated subjects the medical professional to serious embarrassment and sometimes harassment. He has to seek bail to escape arrest, which may or may not be granted to him. At the end he may be exonerated by acquittal or discharge but the loss which he has suffered in his reputation cannot be compensated by any standards.

The increased numbers of litigation have made the medical practitioner overcautious and apprehensive in dealing with the patient. Many a times doctors are known to have refused to treat serious and complicated patients for the fear of being accused of negligence. Again this has led to advising unnecessary investigations, increasing dependency on medical technology making the health services out of reach and unaffordable to poor persons in a developing country like India.

The Supreme Court in recent judgment (Jacob Mathew v State of Punjab)9 have given following guidelines for prosecuting medical professionals against the charge of criminal negligence.

1) A private complaint may not be entertained unless the complainant has produced prima facie evidence before the court in the form of a credible opinion given by another competent doctor to support the charge of rashness or negligence on the part of the accused doctors.

2) The Investigating Officer should, before proceeding against the doctor accused of rash or negligent act or omission, obtain an independent and competent medical opinion, preferably from a doctor in government service qualified in that branch of medical practice who can normally be expected to give an impartial and unbiased opinion.

3) Unless the arrest is necessary for furthering the investigation or for collecting evidence or unless the investigation officer feels satisfied that the doctor proceeded against, would not make himself available to face the prosecution unless arrested, the arrest may be withheld.

The essence of Supreme Court judgment is that ‘intention’ and ‘lack of proper care and caution’ are important ingredients before which a criminal action can be launched against a medical practitioner under criminal law.

Doctor-Patient Relationship

The doctor-patient relationship is one of the most unique and privileged relationship based on mutual trust and faith. Since long, doctors are being treated as next to god. But now a day it seems that there is growing deterioration in doctor-patient relationship. The reason may be communication gap between doctor and patient, commercialization of health services, rising expectation from doctors or increased consumer awareness. An analysis of increased numbers of litigation made against doctor shows deteriorating condition of doctor-patient relationship as the root cause.

Code of Medical Ethics and Etiquette

Medical Profession is governed by code of medical ethics and etiquette as laid down by Medical Council of India.10 It is expected that medical practitioners should abide by these code of medical ethics. Although the code of medical ethics is for an internal self-regulation of the profession, it is an obligation on the part of medical practitioner to fulfill certain rights and expectations of the patients. But there is fast spreading professional misconduct amongst the medical practitioners. The unethical practice has gone to a level where the basic purpose of medial profession i.e. service to humanity fails. Few unethical practices like fee sharing or cut practice, prescribing particular company’s medicine for his personal monitory gains, are openly discussed among medical practitioners but they never come to surface due to lack of concrete proof. This type of unethical practice has led to deterioration of this profession, which was once considered as a noble profession.

Conclusion and Suggestions

The recent Supreme Court judgment has provided breathing space for medical practitioners. This should be utilized to reduce unethical practice, to improve doctor- patient relationship and to strive for service to the humanity. To achieve this, following suggestions are recommended.

1) The Supreme Court in recent judgment states that Statutory Rules or Executive Instructions incorporating certain guidelines need to be framed and issued by the Government of India and/or State Governments in consultation with the Medical Council of India.

2) The ‘Continuing Medical Education’ [CME] workshops should be arranged by Medical Council of India / State Medical Council to refresh the knowledge of medical practitioners and to increase awareness among medical practitioners regarding newer technologies and developments in medical sciences, which will be beneficial to the patients and society at large.

3) Medical Council of India should be strengthened and allotted more powers, including the creation of an independent investigating mechanism, to implement the different Acts and Rules as framed by Government of India.

4) A panel should be formed by Medical Council of India / State Medical Council at each district level which will look after medical negligence cases. The panel should consist of three members from medical profession, one from judiciary and one from social activist group. The private complaint regarding medical negligence should proceed to this panel first, which will study the matter in details. The same judicial procedure is to be followed as followed in cases of disciplinary control over medical practitioners and it must be time bound inquiry. After inquiry, if the medical practitioner is found guilty of medical negligence, it will provide punishment in the form of temporary or permanent erasure of the name of medial practitioners from the medical Register. The result of the inquiry will be informed to the complainant and the complainant will decide whether to file a case against the medical practitioner in court or not. This should also provide scientific basis for investigating agencies to proceed further as per law of the land.

5) The role of disciplinary committee which looks after the violation of code of medical ethics is crucial as it is necessary in changing scenario to hold inquiry, suo moto regarding unethical practice among medical practitioner and take necessary action.

6) Health education and awareness programme for people should be conducted and propagated through media so that common man should be educated regarding intricacies of human body, disease and treatment. This will help in reducing the litigation cases against medical practitioners.

7) The limit of penalty imposed on opposite party, if the complaint made against medical practitioners is found to be frivolous or vexatious (as per the amendment in section 26 of the CPA in 1993) should be exceeded from present Rs.10000/- to Rs.50000/- so that frivolous complaints will be reduced.

8) To prevent unnecessary defamation of the medical practitioners in society, a blanket ban should be placed on print media as well as on electronic media, sothat the name of the doctor and hospital on whom allegations are made regarding medical negligence should not be exposed till he/she is found guilty and is convicted by the court of law.

References

  1. The Consumer Protection Act, 1986.
  2. Indian Medical Association v VP Shantha AIR 1996 SC 550: 1995 (6)SCC 651, para 51, pp 678-79.
  3. Ratanlal and Dhirajlal, Laws of Torts, 24th edition, 2002, edited by Justice G.P.Singh, pp 441 – 442.
  4. Subrahmanyam B. V., Modi’s: Medical Jurisprudence & Toxicology, 22nd edition, 2004, publisher: LexisNexis Butterworths, pp 704.
  5. L.B. Joshi (Dr.) v. T.B. Godbole (Dr.) AIR 1969 SC 128, 131
  6. New India Assurance Co. Ltd. v. Ashok Kumar Acharya, 1994 (2) TAC 469 (Ori)
  7. Bolom v Friern Hospital Management Committee (1957) 1 WLR 582,586.
  8. www.thefreedictionary. Com/criminal + negligence.
  9. Jacob Mathew v state of Punjab and another, Criminal Appeal No. 144-145 of 2004 decided by Supreme Court on August 5, 2005.
  10. Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations 2002, Published on 6 April 2002, in part III section 4 of the Gazette of India.





 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Medical negligence and the law

 

Abstract

After the Consumer Protection Act, 1986, came into effect, a number of patients have filed cases against doctors. This article presents a summary of legal decisions related to medical negligence: what constitutes negligence in civil and criminal law, and what is required to prove it.

Public awareness of medical negligence in India is growing. Hospital managements are increasingly facing complaints regarding the facilities, standards of professional competence, and the appropriateness of their therapeutic and diagnostic methods. After the Consumer Protection Act, 1986, has come into force some patients have filed legal cases against doctors, have established that the doctors were negligent in their medical service, and have claimed and received compensation. As a result, a number of legal decisions have been made on what constitutes negligence and what is required to prove it.

Civil law and negligence

Negligence is the breach of a legal duty to care. It means carelessness in a matter in which the law mandates carefulness. A breach of this duty gives a patient the right to initiate action against negligence.

Persons who offer medical advice and treatment implicitly state that they have the skill and knowledge to do so, that they have the skill to decide whether to take a case, to decide the treatment, and to administer that treatment. This is known as an “implied undertaking” on the part of a medical professional. In the case of the State of Haryana vs Smt Santra, the Supreme Court held that every doctor “has a duty to act with a reasonable degree of care and skill” (1).

Doctors in India may be held liable for their services individually or vicariously unless they come within the exceptions specified in the case of Indian Medical Association vs V P Santha (2). Doctors are not liable for their services individually or vicariously if they do not charge fees. Thus free treatment at a non-government hospital, governmental hospital, health centre, dispensary or nursing home would not be considered a “service” as defined in Section 2 (1) (0) of the Consumer Protection Act, 1986.

However, no human being is perfect and even the most renowned specialist could make a mistake in detecting or diagnosing the true nature of a disease. A doctor can be held liable for negligence only if one can prove that she/ he is guilty of a failure that no doctor with ordinary skills would be guilty of if acting with reasonable care (3). An error of judgement constitutes negligence only if a reasonably competent professional with the standard skills that the defendant professes to have, and acting with ordinary care, would not have made the same error (4).

In a key decision on this matter in the case of Dr Laxman Balkrishna Joshi vs Dr Trimbak Bapu Godbole, the Supreme Court held that if a doctor has adopted a practice that is considered “proper” by a reasonable body of medical professionals who are skilled in that particular field, he or she will not be held negligent only because something went wrong.

Doctors must exercise an ordinary degree of skill (5). However, they cannot give a warranty of the perfection of their skill or a guarantee of cure. If the doctor has adopted the right course of treatment, if she/ he is skilled and has worked with a method and manner best suited to the patient, she/ he cannot be blamed for negligence if the patient is not totally cured (6).

Certain conditions must be satisfied before liability can be considered. The person who is accused must have committed an act of omission or commission; this act must have been in breach of the person’s duty; and this must have caused harm to the injured person. The complainant must prove the allegation against the doctor by citing the best evidence available in medical science and by presenting expert opinion (7).

In some situations the complainant can invoke the principle of res ispa loquitur or “the thing speaks for itself”. In certain circumstances no proof of negligence is required beyond the accident itself. The National Consumer Disputes Redressal Commission applied this principle in Dr Janak Kantimathi Nathan vs Murlidhar Eknath Masane (8).

The principle of res ipsa loquitur comes into operation only when there is proof that the occurrence was unexpected, that the accident could not have happened without negligence and lapses on the part of the doctor, and that the circumstances conclusively show that the doctor and not any other person was negligent.

Criminal negligence

Section 304A of the Indian Penal Code of 1860 states that whoever causes the death of a person by a rash or negligent act not amounting to culpable homicide shall be punished with imprisonment for a term of two years, or with a fine, or with both.

In the Santra case, the Supreme Court has pointed out that liability in civil law is based upon the amount of damages incurred; in criminal law, the amount and degree of negligence is a factor in determining liability. However, certain elements must be established to determine criminal liability in any particular case, the motive of the offence, the magnitude of the offence, and the character of the offender.

In Poonam Verma vs Ashwin Patel the Supreme Court distinguished between negligence, rashness, and recklessness (9). A negligent person is one who inadvertently commits an act of omission and violates a positive duty. A person who is rash knows the consequences but foolishly thinks that they will not occur as a result of her/ his act. A reckless person knows the consequences but does not care whether or not they result from her/ his act. Any conduct falling short of recklessness and deliberate wrongdoing should not be the subject of criminal liability.

Thus a doctor cannot be held criminally responsible for a patient’s death unless it is shown that she/ he was negligent or incompetent, with such disregard for the life and safety of his patient that it amounted to a crime against the State (10).

Sections 80 and 88 of the Indian Penal Code contain defences for doctors accused of criminal liability. Under Section 80 (accident in doing a lawful act) nothing is an offence that is done by accident or misfortune and without any criminal intention or knowledge in the doing of a lawful act in a lawful manner by lawful means and with proper care and caution. According to Section 88, a person cannot be accused of an offence if she/ he performs an act in good faith for the other’s benefit, does not intend to cause harm even if there is a risk, and the patient has explicitly or implicitly given consent.

Burden of proof and chances of error

The burden of proof of negligence, carelessness, or insufficiency generally lies with the complainant. The law requires a higher standard of evidence than otherwise, to support an allegation of negligence against a doctor. In cases of medical negligence the patient must establish her/ his claim against the doctor.

In Calcutta Medical Research Institute vs Bimalesh Chatterjee it was held that the onus of proving negligence and the resultant deficiency in service was clearly on the complainant (11). In Kanhaiya Kumar Singh vs Park Medicare & Research Centre, it was held that negligence has to be established and cannot be presumed (12).

Even after adopting all medical procedures as prescribed, a qualified doctor may commit an error. The National Consumer Disputes Redressal Commission and the Supreme Court have held, in several decisions, that a doctor is not liable for negligence or medical deficiency if some wrong is caused in her/ his treatment or in her/ his diagnosis if she/ he has acted in accordance with the practice accepted as proper by a reasonable body of medical professionals skilled in that particular art, though the result may be wrong. In various kinds of medical and surgical treatment, the likelihood of an accident leading to death cannot be ruled out. It is implied that a patient willingly takes such a risk as part of the doctor-patient relationship and the attendant mutual trust.

Recent Supreme Court rulings

Before the case of Jacob Mathew vs State of Punjab, the Supreme Court of India delivered two different opinions on doctors’ liability. In Mohanan vs Prabha G Nair and another (13), it ruled that a doctor’s negligence could be ascertained only by scanning the material and expert evidence that might be presented during a trial. In Suresh Gupta’s case in August 2004 the standard of negligence that had to be proved to fix a doctor’s or surgeon’s criminal liability was set at “gross negligence” or “recklessness.”

In Suresh Gupta’s case the Supreme Court distinguished between an error of judgement and culpable negligence. It held that criminal prosecution of doctors without adequate medical opinion pointing to their guilt would do great disservice to the community. A doctor cannot be tried for culpable or criminal negligence in all cases of medical mishaps or misfortunes.

A doctor may be liable in a civil case for negligence but mere carelessness or want of due attention and skill cannot be described as so reckless or grossly negligent as to make her/ him criminally liable. The courts held that this distinction was necessary so that the hazards of medical professionals being exposed to civil liability may not unreasonably extend to criminal liability and expose them to the risk of imprisonment for alleged criminal negligence.

Hence the complaint against the doctor must show negligence or rashness of such a degree as to indicate a mental state that can be described as totally apathetic towards the patient. Such gross negligence alone is punishable.

On September 9, 2004, Justices Arijit Pasayat and CK Thakker referred the question of medical negligence to a larger Bench of the Supreme Court. They observed that words such as “gross”, “reckless”, “competence”, and “indifference” did not occur anywhere in the definition of “negligence” under Section 304A of the Indian Penal Code and hence they could not agree with the judgement delivered in the case of Dr Suresh Gupta.

The issue was decided in the Supreme Court in the case of Jacob Mathew vs State of Punjab (14). The court directed the central government to frame guidelines to save doctors from unnecessary harassment and undue pressure in performing their duties. It ruled that until the government framed such guidelines, the following guidelines would prevail:

A private complaint of rashness or negligence against a doctor may not be entertained without prima facie evidence in the form of a credible opinion of another competent doctor supporting the charge. In addition, the investigating officer should give an independent opinion, preferably of a government doctor. Finally, a doctor may be arrested only if the investigating officer believes that she/ he would not be available for prosecution unless arrested.





References:



1. State of Haryana vs. Smt. Santra (2000) 5 SCC 182:: AIR 2000 SC 3335

2. Indian Medical Association vs V P Santha. AIR 1996 SC 550

3. Observations of Lord President Clyde in Hunter vs Hanley (1955) SLT 213. In: Nathan HL. Medical Negligence. London: Butterworths; 1957.

4. Whitehouse vs. Jordan (1981) 1 All ER 267 the House of Lords.

5. Smt J S Paul vs Dr (Mrs) A Barkataki (2004) 10 CLD 1 (SCDRC - MEGHALAYA).

6. Dr Prem Luthra vs Iftekhar (2004) 11 CLD 37 (SCDRC - UTTARANCHAL); Mrs Savitri Devi vs Union of India IV (2003) CPJ 164; Dr Devendra Madan vs Shakuntala Devi I (2003) CPJ 57 (NC).

7. Dr Laxman Balkrishna Joshi vs Dr Trimbak Bapu Godbole AIR 1969 (SC)128

8. Dr Janak Kantimathi Nathan vs Murlidhar Eknath Masane 2002 (2) CPR 138.

9. Poonam Verma vs Ashwin Patel (1996) 4 SCC 332

10. House of Lords decision in R vs Adomako (1994) 3 All ER 79

11. Calcutta Medical Research Institute vs Bimalesh Chatterjee I (1999) CPJ 13 (NC)

12. Kanhaiya Kumar Singh vs Park Medicare & Research Centre III (1999) CPJ 9 (NC)

13. Mohanan vs Prabha G Nair and another (2004) CPJ 21(SC), of 2004 Feb 4.

14. Criminal Appeal Nos 144-145 of 2004

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Law in medicine

 

THE CONSUMER PROTECTION ACT 1986 (CPA, COPRA)

 

 

The consumer protection Act was brought into existence for the protection of interests of the consumer and for settlement of consumer dispute, within a limited time frame and with fewer expenses. In April 1992, the National Commission, on appeal from the kerala State Commission decided that the medical services be covered under COPRA. This enable a consumer (patient) to make a complaint to a redressal forum in respect of a defective service, if the service has been paid for. Defective in the context of a doctor's services means negligent. Deficiency or negligence means faultm imperfection, shortcoming or inadequacy in quality, nature and manner of performance of the medical service rendered by a hospital and/or member of the medical profession. Several amendments in the Act have been passed in the Consumer Protection (Amendment) Act 1993.

 

            Consumer Disputes Redressal Forums have been established at three different levels as given below.

 

  1. ‘District Forum' by the State Government in each district of the state by notification. The jurisdiction to entertain complaints is limited to those where the value of the goods of services and the compensation, if any claimed, does not exceed rupees 20 lakhs.

 

  1. ‘State Commission' by the State Government in the state by notification. It compensation, if any, claimed exceeds rupees 20 lakhs but does not rupees 1 crore and appeals against the orders of any District forum within the state. It can call for the records and pass appropriate order in any consumer dispute which is pending before or has been decided by any District Forum within the state, where it appears to the State Commission that such District Forum has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested or has acted in exercise of its jurisdiction illegally or with material irregularly.

 

 

  1. ‘National Commission' (National Consumer Disputes Redressal Commission) by the Central Government. It has the jurisdiction to entertain complaints, where the value of the goods or services and compensation, if any, claimed exceeds rupees 1 crore and appeals against the orders of any State Commission. It can call for the records and pass appropriate orders in any consumer dispute, which is pending before or has been decided by any State Commission, where is appears to the National Commission that such State Commission has exercised a jurisdiction not vested in it by law, or failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity.

 

Limitation Period

 

The District Forum, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen, unless the complaint satisfies the forum or the commission as the case may be, that he had sufficient cause for not filing the complaint within such period and the reason for condoning such delay is recorded.

 

            Any appeal preferred from the order of the district or the State Commission under the Act, must be filed within thirty days of the order.

 

            Under s 23 of the Act, any person, who is aggrieved by an order made by the National Commission whether in its original or appellate jurisdiction has a right to prefer an appeal to the Supreme Court within a period of 30 days will not stand as a bar, if the Supreme Court is satisfied that there has been a sufficient cause for not filing it in the period.

 

            A final order is required to be passed within 90 days of the issue of the notice or the receipt of the complaint filed by the opposite party if the goods forming subject matter of the dispute are not required to be sent to a laboratory for testing, and 150 days if such testing is required to be done. No time limit has been laid down for the disposal of an appeal or revision petition.

 

Penalty

 

In case of dismissal of frivolous or vexatious complaints-where a complaint instituted before the District Forum, the State Commission or, as the case may be, the National Commission, is found to be frivolous or vexatious, it shall for the complainant shall pay as penalty to the opposite party such cost, not exceeding ten thousand rupees, as may be specified in the order.

 

            Thus, District Forums have original jurisdiction, while the State and the National Commission are vested with original, appellate and revisional jurisdictions.

 

            As per the judgment of the Supreme Court of India on 13 Nov 1995, the medical services delivered on payment basis, clearly fall, within the ambit of the Act. Similarly, the hospital or the nursing homes, which provide free service to some of the patients who cannot afford to pay the fees, but the bulk of the service is rendered to the patient on payment basis, are also covered under this treatment and all the charges for consultations, diagnosis and medical treatment are borne by the insurance company, the service rendered to him by a medical practitioner would not be free of charge and would, therefore, constitute service as defined in the Act.

 

            The Supreme Court judgment also enlarges the definition of negligence by enunciating that violation of an established law is also negligence and where a service provider is guilty of such negligence, no further proof is required to hold him liable for his action.

 

Criminal Negligence

 

A careful medical man, will, in most cases, not be exposed to any legal action and also prove that reasonable care and diligence and necessary professional skill had been exercised in the course of treatment if he observes the following rules.

 

  1. Never criticize another colleague.

 

  1. Always confirm your diagnosis with generally approved methods such as laboratory tests and in bone or joint injuries always on X-rays and see that the plaster is not too tight

 

 

  1. Advise immunization whenever there us danger if infection-particularly tetanus.

 

  1. In diagnosing cancer, ask for a biopsy, X-ray etc, without any delay as loss of time may mean life or death.

 

 

  1. Always make sure of the preparation, before you inject or use otherwise. Never fail to give antibiotics, if indicated.

 

  1. It is the duty of every doctor to be well informed of developments in medical practice.

 

 

  1. The administration of an anaesthetic or the performance of an operation should not be undertaken without the consent of the patients, or his guardian, if he is minor or unconscious, after the nature and consequence of the operation have been explained to him or to his guardian. But in cases of accident or other emergency where delay in dangerous an operation may be performed without the consent of the patient or his relative or guardian, if the medical attendant thinks that the operation is necessary to save the life of the patient. Under s 92, IPC he is protected against any harm caused to a person in good faith.

 

  1. In a case where the surgeon is not sure what he would have to do during the operation owing to some obscure signs, he should obtain a written authority to use his discretion in doing what appears to him, to be in the best interests of the patient. In case of criminal wounding, an operation ought not to be performed, unless it is necessary.

 

 

In such a case, care should be taken to keep an accurate record of the state of the                                    patient before the operation is performed. It is also better, before performing any operation, to get opinion and help of another surgeon, if possible. Proper precautions should be taken to avoid operating on a wrong patients or the wrong part of a patient

.

9.      Post-operative care of an operated patient is his legal responsibility-if necessary proper care by another consultant colleague must be arranged. He should never fail to attend an urgent call from a person whom he is treating.

 

10.  An anaesthetist should be a duly qualified man, and he should always administer a generally accepted anaesthetic, after he has examined the heart, urine etc, of the patient to prove that he had used reasonable care and skill in administering it. It must also be remembered that it is dangerous to anaesthetize persons with sickle cell trait as it precipitates sickling. Persons with helminthic infestations should be treated properly sicking. Persons with helminthic infestations should be treated properly before anaesthesia as ether acts as an irritant to nematodes and my result in death.

 

 

11.  In the case of death from anaesthesia, the surgeon or anaesthetist should at once report the matter to the police for holding a public enquiry.

 

Sudden death during anesthesia is of considerable medico-legal importance, one should death from anaesthesia, the surgeon or anaesthetist should at defective judgment of an anaesthetist. Any of the following factors may be responsible for death during anaesthesia:

 

1.      giving or repeating of drugs like morphia, atropine, Nembutal etc, before anaesthesia, at wrong time;

 

2.      vagal inhibition while putting an intratracheal tube;

 

 

3.      as a result of faulty use of relaxants and hypotensive drugs;

 

4.      accidents, which may cause obstruction of airway of spasm resulting in asphyzia;

 

 

5.      the amount and type of drug used for anaesthesia and duration of anaesthesia and duration of anaesthesia may have a fatal effect;

 

6.      hypotension, as a result of spinal anaesthesia;

 

 

7.      inadvertently giving a wrong gas during anaesthesia or rarely causing an explosion. Dangerous combination are oxygen and cyclo-propane or ether, which may be ignited by an accidental spark;

 

8.      shock due to operation itself, myocardial or coronary disease of the heart, fat or air embolism, hypothermia or incompatible blood transfusion may be other causes. While doing a postmortem, it is difficult to evaluate the cause of death, as usually there is no evidence of sudden fall of blood pressure, cardiac irregularities or glottic spasm, which may have been responsible for causing sudden death. Toxicological analysis may help.

 

 RIGHTS OF AN UNBORN CHILD

 

Law recognizes the foetus as a special aggregation of cell with a potential for independent life and in this way protects the rights of an unborn child. It has legal rights, such as the right to inherit, the right to sue, the right not to be harmed by drugs and the right to bring a tort action.51 So an abortion may be interpreted as killing a potential heir or a potential tort suit bringer. Abortion is a form of murder, in which the principal is almost never prosecuted, but the abortionist may be prosecuted. However, doctors treating any woman of child bearing age must be protected from the risk of being accused of harming a foetus.52 Some accepted examples of preconception injuries to parents leading to disabilities to their children are:

 

a)      Failure to give a rhesus negative woman anti-D gamaglobulin in the first 72 hours after the birth of her first Rh+ child;

 

b)      Radiation of genital organs causing genemutation, there could be liability if negligence were proved; or

 

c)      A congenital syphilitic child born as a result of negligent transfusion to the mother before conception, of a syphilitic donor.

 

However, the risk is limited if any of the parents are aware of a risk of a disabled child being born. Legally, the child is bound by mothers' exemption clauses but is unable to sure upon her contracts.

 

            It must also be remembered that the common law protects a prefessional man, who has acted in accordance with the standards of reasonably competent man.

 

 

 THE TRANSPLANTATION OF HUMAN ORGANS BILL 1994

 

The Bill provides for the regulation of removal, storage and transplantation of human organs for therapeutic purposes, and for the prevention of commercial dealings in human organs and for matters connected therewith or incidental thereto.

            It has been called the Transplantation of Human Organs Act 1994 and came into effect 4 Feb 1995, with the Government of India Gazette notification. With the Act coming in force, brain death has acquired legal status in India. The Act has also caused the Ear Drums and Ear Bones Act 1982 and the Eyes Act 1982 to be repealed.

 

Authority for the Removal of Human Organs

 

If any donor had, in writing and in the presence of two or more witnesses (at least one of whom is a near relative of such person) unequivocally authorized at any time before his death, removal of any human organ of his body, after his death, for therapeutic purposes, the person lawfully in possession of the dead body of the donor shall, unless he has any reasons to believe that the donor had subsequently revoked the authority aforesaid, grant to a registered medical practitioner, all reasonable facilities for the removal, for the therapeutic purpose, of that human organ from the dead body of the donor.

 

            Where no such authority was made by any person before his death, but no objection was also expressed, the person lawfully in possession of the dead body of such person may, unless he has reason to believe that any near relative of the deceased person has objection purposes, authorize the removal of any human organ of the deceased person for its use for therapeutic purpose.

 

            Removal of the organ can be made by no person other than the registered medical practitioner, who shall satisfy himself that life is extinct in such body or, where it appears to be a case of brain-stem death, that such death has been certified.

 

            Where any human organ is to be removed from the body of a person in the event of his brain-stem death, such death is certified by a board of medical experts consisting of:

                                                                                i.            The registered medical practitioner in-charge of the hospital in which brain-stem death has occurred;

 

                                                                              ii.            An independent registered medical practitioner being a specialist nominated by the appropriate authority;

 

 

                                                                            iii.            A neurologist or a neurosurgeon to be nominated by the registered medical practitioner from the panel of names approved by the appropriate authority;

 

                                                                            iv.            The registered medical practitioner treating the person whose brain-stem death has occurred.

 

 

Where the brain-stem death of any person, less than eighteen years of age occurs, any of the parents of the deceased person may give authority, for the removal of any human organ from the body of the deceased person . no such authority can be given by a person to whom such has been entrusted solely for the purpose of interment, cremation or other disposal.

 

            In case of a dead body in a hospital or prison no claimed within forty-eighty hours from the time of a death, the authority for the removal of any human organ may be given by the person in charge, for the time being of the management or control of the hospital or prison, or by an employer of such hospital or prison authorized in this behalf by the person in charge of the management or control there of.

 

            Where the body has been sent for postmortem examination, (medico-legal/pathological) the person competent under this Act to give authority for the removal of any human organ from such dead body may, if he has reason to believe that such human organ will not be required for the purpose for which therapeutic purpose, of that human organ of the deceased.

 

            No human organ removed from the body of a donor before his death shall be transplanted into a recipient unless the donor is a near relative of the recipient.

 

            If any donor authorizes the removal of any of his human organs before his death, for transplantation into the body of such recipient, not being a near relative, as is specified by the donor by reason of affection or attachment towards the recipient or for any other special reasons, such human organ shall not be removed and transplanted without the prior approval of the authorization committee.

 

            The eyes or the ear drums or the ear bones may be removed at any place, from the dead body of any donor, for therapeutic purposes, by a registered medical practitioner.

 

            No donor and no person empowered to give authority for the removal of any human organ shall authorize the removal of any human organ for any purpose other than therapeutic purpose.

 

Offences and penalties

 

Any person who renders his services to or at any hospital and who, for purposes of transplantation, conducts, associates with, or helps in any manner, in the removal of any human organ without authority, shall be punishable with imprisonment for a term which may extend to five years and with fine which whoever-

 

a)      Makes or receives any payment for the supply of, or for an offer to supply, any human organ;

 

b)      Seeks to find a person willing to supply for payment of any human organ;

 

c)      Offers to supply any human organ for payment;

d)      Initiates or negotiates any arrangement involving the making of any payments for the supply of, or for an offer to supply, any human organ;

 

e)      Takes part in the management or control of a body of persons, whose activities consist of or includes the initiation or negotiation of any arrangement referred to in clause (d), or

 

f)        Publishes or distributes a cause to be published or distributed, any advertisement-

                                 i.            Inviting person to supply for payment of any human organ;

                               ii.            Offering to supply any human organ for payment; or

iii.                        Indicating that the advertiser is willing to initiate or negotiation

of any arrangement referred to in clause (d), Shall be punishable with imprisonment for term of two to seven years and shall be liable to fine which shall not be less than ten thousand rupees but may extend to twenty thousand rupees

 

Any offence punishable under this Act shall be tried in the court of a Metropolitan Magistrate or a Judicial Magistrate of the first class.

 

DONATION OF CORNEA

 

Under the Bombay Corneal Grafting Act 1957, if any person either in writing at any time, or orally in the presence of two or more witness during his last illness, has expressed a request that his eyes be used for therapeutic purposes after his death, the person lawfully in possession of his body after his death may, authorize the removal of the eyes from the body provided the removal shall be effected objects to the removal. The Bombay Corneal Grafting (Amendment) Bill of 1976, now allows any qualified ophthalmologist to remove cornea in a private clinic after seeking Government's permission. Many other states have also passed such acts.

 

The following two Acts extends to the whole of the Union Territory of Delhi:

 

  1. The Eyes (Authority for use for Therapeutic purposes) Act 1982 (No 29 of 1982): To provide for the use of eyes of deceased persons for therapeutic purposes and for matters connected therewith.

 

  1. The Ear Drum and Ear Bones (Authority for use for Therapeutic purposes) Act 1982 (No 29 of 1982): To provide for the use of ears of deceased persons for therapeutic purposes and for matters connected therewith.

 

The Bombay Anathomy Act 1949: (Adapted and modified by the Adaptation of Laws Order, 1960) provides for the supply of unclaimed bodies of deceased persons to hospitals and medical and teaching institutions (for Therapeutic purposes or), for the purpose of anatomical examination and dissection.

 

Maharashtra Kidney Transplantation Act 1982: This Act has made provisions for use of kidneys of deceased persons, and for donation of kidneys, for therapeutic purposes. It extends to the whole of the State of Maharashtra.

 

THE DELHI ARTIFICIAL INSEMINATION (HUMAN) ACT 1995

 

This Act is applicable in the National Capital Territory of Delhi. It regulates the donation, sale and supply of human semen and ovum for the purpose of artificial insemination. It requires registration and yearly renewal by any person intending to carry on a semen bank. The semen bank before accepting the semen for artificial insemination shall test the donor for the presence of Human ImmunoDeficiency Virus Type 1 and 2 (HIV 1 and 2), antibodies by Enzyme Linked Immuno Sorbent (ELISA) Kit and screen for HIV surface antigen and if found negative, only then, the donor shall be allowed to donate. The donated semen shall be stored either by cryo-preservation of liquid nitrogen freezing or any other safe method for a minimum period of three months in order to exclude window period of HIV 1 and 2 infection in the donor. Second ELISA test is performed on the donor after three months, and if negative, the semen shall then be used. It is also required by the practitioner, under this Act to:

 

  • Seek the written consent of the husband and the wife, seeking artificial insemination (AI);

 

  • Test the recipient for HIV 1 and 2 and other sexually transmitted diseases before performing AI;

 

 

  • Not segregate the XX/XY chromosomes for AI;

 

  • Seek the written consent of the recipient for using the semen on the basis of only one ELISA test, being negative, where facilities for cryo-preservation and liquid nitrogen for semen are not available.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

CRIMINAL NEGLIGENCE BY DOCTORS-A SCENARIO OF AGGRESSIVE PATIENTS, CONFUSED DOCTORS AND DIVIDED JUDICIARY!

 

ABSTRACT

The word “negligence” is always damaging to the reputation of doctors, related to some damage to the patient and a challenge before the judges. In recent years, sudden spurt in the cases of “Criminal negligence” and decision of the Supreme Court (Dr. Suresh Gupta vs. Govt. of NCT of Delhi) raises a fresh debate.

This paper deals with current scenario of “Criminal Negligence”, applicability of Section 304 & 304-A IPC in cases of death of patient during treatment, remedial measures available to a doctor facing the charge of ‘Criminal Negligence’ and a brief discussion of important cases related to the issue, including recent case.

Key Words: Criminal, Doctor, Judiciary, Negligence, Patient.    

INTRODUCTION:

Negligence is a term of art, but has distinct meanings in different jurisdictions. In ‘Tort’, damage is an essential ingredient but that element is not necessary in the law of master and servant. In criminal law, there are series of offences based on negligence in which loss or injury is not material, it is enough if the act is likely to cause injury or endanger life.1 Operation of patient without consent is an example of negligence (Statutory Damage) even without actual apparent damage. Dictionary meaning of term ‘Negligence’ is ‘Lack of Proper Care’.  As defined by Baron Alderson negligence means: “Omission to do something which a reasonable man guided by those consideration which regulate conduct of human affairs would do, or doing something which a reasonable man would not do”. Same definition is quoted in many decisions of the court.2 ‘Criminal Negligence’ is an offence against the State while ‘Civil Negligence’ is an offence against the individual act, which leads to injury i.e. physical injury, hurt- Section 319, grievous hurt- Section 320 Indian Penal Code (IPC). Loss of property (financial loss) due to some negligent act is always a civil negligence.4 Recent decision of the Supreme Court 5 delivered on August 4, 2004 raises a fresh debate on the issue of ‘Criminal Negligence by the Doctors’. In this case the Supreme Court relied on various decisions of the House of Lords6,7,8,9, 10.

WHY PUBLIC APPEARS TO BE AGGRESSIVE?

There have been an ever-increasing number of cases of patients suing doctors for alleged ‘Criminal Negligence’. Is it just that more patients report to the courts against innocent doctors, or does it have to do with an actual fall in the standards amongst medical practitioners? In the last decades, technical advances in the medical field have meant a better quality of life, with an increased longevity and falling morality levels. Unfortunately, there has not been a corresponding shift in the standard of medical education or investment in the concept of patient management in most of the healthcare setups. Fast-track commercialization and the adoption of corporate culture values by hospitals and members of the medical fraternity only put more strain on the doctor – patient relationship.

REASONS FOR INCREASING LITIGATIONS.

  • All these factors together are responsible for aggressive attitude of public towards doctors.

DEGREE OF NEGLIGENCE:

High degree of negligence is necessary to prove the charge of criminal negligence u/s 304-A IPC. For fixing criminal liability on a doctor or surgeon, the standard of negligence required to be proved should be as high as can be described as “gross negligence”. It is not merely a lack of necessary care, attention and skill.6

The Supreme Court held that “Thus a doctor can’t be held criminally responsible for patient’s death unless his negligence or incompetence showed such disregard for life and safety of his patient as to amount to a crime against the State”. 5 Court further adds, “Thus, when a patient agrees to go for medical treatment or surgical operation, every careless act of the medical man can’t be termed as ‘Criminal’. It can be termed ‘Criminal’ only when the medical man exhibits as gross lack of competence or inaction and wanton indifference to his patient’s safety and which is found to have arisen from gross ignorance or gross negligence.

 “Where a patient’s death results merely from ‘Error of judgment” or “an accident”, no criminal liability should be attached to it. Mere inadvertence or some degree of want of adequate care and caution might create civil liability but wouldn’t suffice to hold him criminally liable.5 The following concluding observations of the learned authors11 as quoted by the Supreme Court are apt on the subject and a useful guide to the courts in dealing with the doctors guilty of negligence leading to death of their patients: “Criminal punishment carries substantial moral overtones. The doctrine of strict liability allows for criminal conviction in the absence of moral blameworthiness only in very limited circumstances. Conviction of any substantial criminal offence requires that the accused person should have acted with a morally blameworthy state of mind. Recklessness and deliberate wrong doing, levels four and five are classification of blame, are normally blameworthy but any conduct falling short of that should not be the subject of criminal liability. Common-law systems have traditionally only made negligence the subject of criminal sanction when the level of negligence has been high – a standard traditionally described as gross negligence……….

………..

Blame is a powerful weapon. When used appropriately and according to morally defensible criteria, it has an indispensable role in human affairs. Its inappropriate use however, distorts tolerant and constructive relations between people. Some of life’s misfortunes are accidents for which nobody is morally responsible. Others are wrongs for which responsibility is diffuse. Yet others are instance of culpable conduct, and constitute grounds for compensation and at times, for punishment. Distinguishing between these various categories requires careful, morally sensitive and scientifically informed analysis”.

ROLE OF MEDICAL EXPERT'S OPINION:

No case of criminal negligence should be registered without a medical opinion from Expert Committee of doctors and it should be given within a reasonable time. Indian Medical Association (IMA) Punjab claimed “they had secured a directive from Director General of Police (DGP) Punjab that no case of criminal negligence can be registered against a doctor without a report from an Expert Committee.12 Similar situations exist in the case of State of Delhi where Lieutenant Governor issued directions to the Delhi police regarding how to arrest a doctor in medical negligence case, the Delhi High Court also decided to form guidelines for lower judiciary as well as the police to deal with such cases.13

Hon’ble Supreme Court endorsed the same view, as “criminal prosecution of doctors without adequate medical opinion would be great disservice to the community – as it would shake the very fabric of doctor- patient relationship with respect to mutual confidence and faith the doctors would be more worried about their own safety instead of giving best treatment to their patients”5.

APPLICABILITY OF SECTION 304 & 304-A OF IPC:

“The legal position is almost firmly established that where a patient dies due to the negligent medical treatment of the doctor, the doctor can be made liable in civil law for paying compensation and damages in ‘Tort’ and at the same time, if the degree of negligence is so gross and his act was reckless as to endanger the life of the patient, he would also be made criminally liable for offence under section 304-A of IPC”. 5

Incidences are reported in which cases are registered against the doctor’ u/s 304 IPC as doctors are murderer and even not granted bail14, 15.

 

 

 

WHY DOCTORS ARE CONFUSED OVER THE ISSUE OF ‘CRIMINAL NEGLIGENCE’?

Doctors are victims of ‘Trial by media or post mortem of Court’s judgment done by the media’ or misinformation spread through the media and technicality of legal words used in the matters of ‘Criminal Negligence’. As reported by various leading national news papers after the recent decision of Supreme Court 5  “ Doc not Criminally Liable if Patient Dies”16, “Saving the Doctors” 17, “SC Judgment Qualifies Medical Negligence” 18, SC Insures Docs Against Patient Death” 19, SC Ruling a Deliverance for Medical Fraternity”20, “SC Comes to the Rescue of Doctors” 21 etc. “This would mean that the relief the doctors had got due to the Judgment, 5 would not be available to them till the larger Bench give its opinion”.22

Doctors relying on these media reports without verifying the facts from original judgment or through discussion with the legal experts on the issue may fall prey of this misinformation perceived through the eyes of media and may propagate same feeling and knowledge to other colleagues and junior doctors and always remain confused on the issue of criminal negligence. While SC judgments5 mention nothing new except verifying the previous established fact that ‘error of judgment is not negligence”.

ROLE OF MEDIA:

The freedom of information is implicitly covered by, Article 19 and Article 21 under the Indian Constitution.23 Disposing off a case of contempt of Court against the editors of two newspapers recently, the Supreme Court remarked: “It is the duty of a true and responsible Journalist to inform the people with accurate and impartial presentation of news and his views after dispassionate evaluation of the facts and information received by him to be published as a news item”. 24

Since the 1970,s Indian media has played an extremely important role in sensitizing people with information about governance, development, science and technology, foreign relations and so on. However, lately it has also come in for criticism, as highlighted by the above the Supreme Court decision. There is a decline in journalistic credibility, as noted by the Chairman of the Press Council of India as well as the President K.R. Narayanan.

Recently, due to the media preoccupation with the trivia, personality cult, one-sidedness, and instant in-depth investigation, 51 senior journalists feel that the media sides away from important people’s issues that it is losing social content and becoming a consumer product with a manager overshadowing the editor. The media has a tendency to launch “trial by the media”; even sentencing by the media, while a Court proceeding is underway.

DIVIDED JUDICIARY:

Referral of judgment of SC5 to the larger bench further confirms the divided opinion of judiciary and complexity of legal words used in cases of negligence. The much-debated judgment of the SC is now referred to a larger Bench for reconsideration on September 9, 2004. A Bench of Mr. Arijit Pasayat and Mr. C.K. Thakkar observed that the words “gross negligence” or “reckless act” did not fall within the definition of Section 304-A IPC, defining death due to an act of negligence or the culpable homicide not amounting to murder. 22, 25, 26

Between Civil and Criminal liability of a doctor causing death of his patient the court has a difficult task of weighing the degree of carelessness and negligence alleged on the part of the doctor. For conviction of a doctor for alleged criminal offence, the standard should be proof of recklessness and deliberate wrong doing with a higher degree of morally blameworthy conduct.5

SUMMARY & CONCLUSION:

Thus, where a patient’s death, results merely from error of judgment or an accident, no criminal liability should be attached to it. Mere inadvertence or some degree of want of adequate care and caution might create civil liability but would not suffice to hold doctor criminally liable.

“To convict, therefore, a doctor, the prosecution has to come out with a case of high degree of negligence on the part of the doctor. The courts have, therefore, always insisted on the case of alleged criminal offence against doctor, causing death of his patient during treatment, that the act complained against the doctor must show negligence or rashness of such a higher degree as to indicate a mental state, which can be described as totally apathetic towards the patient. Such gross negligence alone is punishable”. 5

Court further adds, “Criminal responsibility carries substantial moral overtones. Some of life’s misfortunes are accidents for which no body is morally responsible, others are wrong for which responsibility is diffuse, yet others are instances of culpable conduct & constitutes grounds for compensation & at times for punishment. To distinguish between these categories requires careful, morally sensitive & scientifically informed analysis”. 5

This approach of the courts in the matter of fixing criminal liability on the doctors, in the course of medical treatment given by them to their patients, is necessary so that the hazards of medical men and medical profession being exposed to civil liability, may not unreasonably extend to criminal liability and expose them to risk of landing themselves in prison for alleged criminal negligence.

Medical Council of India and State Medical Councils should come forward to strictly implement its regulations over medical profession because the failure of these regulatory bodies to keep check on the erring doctors or to effectively enforce ethical guidelines framed in 2002 27, are the reasons for falling standard of health care in India.

The editor of a newspaper or a Journal, the Supreme Court said, has a greater responsibility to guard against untruthful news and its publication. “If the newspaper publishes what is improper, mischievously false or illegal and abuses its liberty, it must be punished by a court of law”.  While a free and healthy press is indispensable to the functioning of a true democracy, the Court said the freedom of the Press is subjected to reasonable restraints. 24

What everybody can hope that new decision would come up not only with clear definition of the ‘criminal negligence but also with exact meaning of the legal words used in defining the case of criminal negligence by the highest law protector and giver of India.

References:

1.      Kedar Nath vs. State, AIR 1965, Allahabad 233.

2.      M/S Krishna Roadways, Nathdwara vs. Madanlal, 1984 R.L.W. 25.

3.      (R3Bhajan Lal Gupta vs. Mool Chand Khairati Ram Hospital, reported in 2001 (1) CPR 70-N.C.

4.      Smt. Beti Bai Saxena vs. S.L. Mukherjee (Dr.) 2001 (2) CPR 405- Punjab & Haryana State Commission, para 13)

5.      Dr. Suresh Gupta vs. Govt. of NGT of Delhi & another (Criminal Appeal No. 778 of 2004, SLP (Cri) No. 2931 of 2003.

6.      R. vs. Ademako [1994 (3) All E.R. 79].

7.      Suleman Rehman Mulani Vs. state of Maharashtra [19689(2) SCR 515]

8.      Laxman Balkrishana Joshi Joshi vs. Trimbak Baper Godhbole [1969 (1) SCR 206]

9.      Municipal Corporation of Delhi vs. Ram Kishan Rohtogi AIR 1983 SC 67.

10.  Drugs Inspector vs. B.K. Krishnaiah AIR 1981 SC 1164.

11.  Alan Merry and Alexainder McCall Smith; “Errors, Medicine and the Law”: 247-248.

12.   Sunday Times, August 08, 2004: 2.

13.  “Fresh Rules in Negligence Arrests”, The Times of India, August 23, 2003: 3.

14.  “H C Rejects Doctor’s Bail Application”, Sunday Times of India, August 15, 2004: 8.

15.  “Quack Botches up Tongue Operation, Kills Teenage Girl’ Hindustan Times, June 8, 04:10.   

16.   “Doc not Criminally Liable if Patient Dies”, Hindustan Times, August 6, 04: 1.

17.  “Saving the Doctor” Hindustan Times August 9, 04: 6.

18.   “SC Judgment Qualifies Medical Negligence”, The Times of India August 11, 04: 14.

19.  “S C Insures Doctors Against Patient’s Death”, The Times of India August 6, 04: 6.

20.  “SC Ruling a Deliverance for Medical Fraternity”, Sunday Times, August 8, 2004: 2.

21.  “SC Comes to the Rescue of Doctors”, The Tribune, August 12, 2004: 10.

22.  “SC Judgment on Doctor’s Criminal Liability for Larger Bench”, The Tribune, September 10, 2004: 1.

23.  Narendar Kumar, “Constitutional Law of India”, Edition-1997: 146

24.  State of Human Rights in India, (3.3): 94-95.

25.  “Negligence by Doctors: Bench to Review Verdict”, The Times of India. September 11, 2004: 10.

26.  “Apex Court to Review its Order on Docs Culpability’ Hindustan Times, September 10, 04: 9.

27.  The Indian Medical Council (Professional conduct, Ethics and Etiquettes) Regulations – 2002.

 

 

 

 

 

 

 

 

 

 

INDIA: Government hospital negligence and police inaction in the killing of a woman

The Asian Human Rights Commission (AHRC) has received information from its local partner MASUM in West Bengal regarding the gross negligence of government hospitals and police inaction regarding a fatal attack on a woman. It was reported that several government hospitals refused to provide emergency medical treatment to the seriously injured victim, which resulted into her untimely death. It was also reported that the local police apparently delayed filing a non-bailable charge against the alleged perpetrators despite the complaint by the relatives of the victim and indirectly helped them to be bailed out by the court. It is believed that the police inaction is due to the nexus between the police and the alleged perpetrators, who are rich and influential figures in the area. 

CASE DETAILS:

The family of Mrs. Gouri Naskar (35) of Tentulpara, Naskarpara, Garia village under the control of the Sonarpura Police Station in South 24 Pargana District, West Bengal, India had a longstanding dispute with the family of her husband's uncle, Mr. Bholanath Naskar, regarding a piece of land, that has not been demarcated. Mr. Bholanath, who is a wealthy and influential man in the area, allegedly used his influence and illegally constructed a boundary wall at the common entrance of the two families for the concerned land. This caused great difficulty to the victim's family to access the land and the victim's husband Mr. Sushil Naskar lodged several complaints with different responsible authorities but received no response from any of them.

At around 9:30pm on 8 August 2006, two sons of Mr. Bholanath assaulted Mrs. Gouri's 10-year-old son. When she protested against the beating of her son, Mr. Bholanth and another son joined the two men and they all brutally attacked Mrs. Gouri with bamboo sticks and concrete rods. As a result, the victim was seriously injured on her head.   

Mrs. Gouri was then immediately brought to Bangur Hospital of Kolkata. However, after assessing her condition as critical, hospital officials refused to provide further medical treatment to her and released her the very next day (August 9). Mrs. Gouri was then taken to Chittaranjan Medical College and Hospital, Kolkata, where again the doctors refused to admit her after scanning her head, merely saying that the hospital did not have proper equipment for her treatment. Then Mrs. Gouri was again taken to other government hospitals; National Medical College and Hospital, Kolkata and S.S.K.M. Hospital, Kolkata but both places also refused to admit her after observing the seriousness of her injuries, saying that they had no available beds. Accordingly, Mrs. Gouri's family was forced to bring her back home because at that time they did not have enough money to admit her in a private hospital. 

On August 11, Mrs. Gouri's family somehow managed to collect the money from the relatives and admitted her in a private clinic by spending Rs 35,000 (USD 783) but Mrs. Gouri ultimately succumbed to her head injuries on August 14.  

Meanwhile, two days after the incident on August 10, Mrs. Sandhya Naskar, the sister of the victim's husband, lodged a complaint against the four concerned men with the Sonarpura police station and the First Information Report was registered under sections 324 (voluntarily causing hurt by dangerous weapons or means) and 34 (acts done by several persons in furtherance of common intention) of the Indian Penal Code (FIR no. 260/06 dated 10/08/06). However, the police did not take any action to investigate the incident and arrest the alleged perpetrators. They did not even visit the place of the incident.

Furthermore, the Sonarpura police unnecessarily delayed to add section 304 (punishment for culpable homicide not amounting to murder) of IPC, a non-bailable charge, in the charge sheet against the alleged perpetrators for 46 days after the victim's death until September 30. Taking advantage of the deliberately delayed police action, on September 12 all the alleged perpetrators successfully obtained bail from the Court of Additional Chief Judicial Magistrate (ACJM) of Alipore, which was not aware the victim's death and treated the case as a bailable one. It is reported that the perpetrators are now arrogantly intimidating the victim's family not to pursue the case against them. To date, the Sonarpura police have not yet taken any serious action to investigate the incident and arrest the alleged perpetrators. The victim's family believes that the police inaction is due to the nexus between the police and the alleged perpetrators, who are rich and influential figures in the area. 

ADDITIONAL COMMENTS:

In fact, Mrs. Gouri's case is yet another case relating to the nexus between the influential criminals and local police. The AHRC has constantly raised its serous concern about this matter by reporting several cases relating to this issue. They include: UA-351-2006, UA-375-2006 and UA-370-2006.

In the normal investigating procedure by the police, the first step is to register a First Information Report (FIR) instantly under relevant sections of respective Laws. However, in many cases, the police refuse to register the FIR or deliberately delay to register the FIR to give the alleged culprits a chance to escape. In the second step, the police must also investigate and file the charge sheet at the local court which entertains jurisdiction over the case without undue delay. However, it is common practice in India that the police fail to investigate or initiate any action against the criminals due to corruption.

An effectively functioning criminal justice system is the primary requisite for establishing the rule of law and policing is the backbone of the criminal justice system. No rights whether they be civil and political or economic, social and cultural would find meaning without a properly functioning criminal justice mechanism. While the superior courts in India and the government of India itself boasts about the luminous judgments rendered by the Apex Court of the country, in many rural villages in India none of these judgments or any laws are enforced even to the bare minimum. India is a country where 71% of its 1.2 billion populations reside in villages. This means that for an alarming section of India's 852 million rural population rule of law and governance makes no sense.

Moreover, in this case, the victim was further victimized by the poor public health system, particularly the government hospitals. If the victim had received timely and proper medical treatment, she could have survived. The problem is that numerous numbers of civilians in India are suffering from very poor service from the governmental hospitals. They are forced to go to very costly private clinics to receive proper treatment but for those who don't have enough money, this is not an available option.  To see further details about the failure of the public health system in India, please also refer to: UA-270-2006 and UA-206-2006.     



The Supreme Court of India has already acknowledged this matter and gave direction in the case of Paschim Bangal Khet Mazdoor Samity and others Vs State of Bengal (refer to: All India Reporter (AIR) 1996, page 2426). The Supreme Court stated in the judgment that "failure on the part of the Government Hospitals to provide timely medical treatment to a person in need of such treatment results in violation of her 'Right to Life' guaranteed under Article 21 of the Indian Constitution". Therefore it is one of the most essential obligations of the state is to provide timely proper medical treatment to the people irrespective of any discrimination. The AHRC holds to its firm opinion that the failure of government hospitals to provide the emergency medical treatment to the victim violated her right to life and strongly urges the Indian government to ensure that adequate compensation is given to the victim's family.  

SUGGESTED ACTION:

Please write to the relevant authorities and urge them to intervene into this matter immediately. Please urge them to order a prompt and thorough investigation about the inaction of Sonarpura police and take steps to arrest the alleged perpetrators. Please also write to initiate the enquiry against the gross violation of 'right to life' of the victim by government hospitals in West Bengal. The AHRC is also writing to Mr. Paul Hunt, UN Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health regarding this matter. 

INDIA: Government hospital negligence and police inaction about the killing of a woman   

Name of victim: Mrs. Gouri Naskar, aged 35, the wife of Mr. Sushil Naskar, resided in Tentulpara, Naskarpara, Garia village under Sonarpura Police station  in South 24 Parganas district, West Bengal state, India





 

Alleged perpetrators:

1. Mr. Bholanath Naskar, Mr. Sushil Naskar's uncle

2. Mr. Tabal Naskar, the son of Bholanath Naskar

3. Mr. Swapan Naskar, the son of Bholanath Naskar

4. Mr. Bapi Naskar, the son of Bholanath Naskar

(All of them are residing in Tentulpara, Naskarpara, Garia village)



Date of incident: At around 9:30pm on 8 August 2006

I am extremely disturbed to learn regarding the gross negligence of government hospitals and police inaction regarding a serious attack on the life of a woman. I have been informed that several government hospitals refused to provide emergency medical treatment to the seriously injured victim, which resulted into her untimely death. It has also been alleged that the local police apparently delayed to file a non-bailable charge against the alleged perpetrators despite the victim's relative's complaint and indirectly helped them to be bailed out by the court. It is believed that the police inaction is due to the nexus between the police and the alleged perpetrators, who are rich and influential figures in the area. 

To briefly remind the case, Mrs. Gouri Naskar had a longstanding dispute regarding a piece of land with her husband's cousin family. On August 8, 2006 above mentioned perpetrators attacked on Mrs. Gouri with bamboo and concrete rods. As a result of brutal beating the victim became seriously injured by her head.

I was informed that Mrs. Gouri was brought to different government hospitals but none of these hospitals admitted her for emergency medical treatment although she was in critical condition that needs urgent medical treatment. The concerned hospitals are; Bangur Hospital of Kolkata, Chittaranjan Medical College and Hospital, Kolkata, National Medical College and Hospital, Kolkata and S.S.K.M. Hospital, Kolkata. Finally Mrs. Gouri was succumbed to her head injury on August 14.  

Such grass negligence of government hospitals is against the directions laid in the judgment of the Supreme Court in the case of Paschim Bangal Khet Mazdoor Samity and others Vs State of Bengal. In the judgment, the Supreme Court clearly mentioned that "failure on the part of the government hospital to provide timely medical treatment to a person in need of such treatment results in violation of his 'right to life' guaranteed under Article 21 of the Indian Constitution".      

I am also deeply concerned by deliberate police inaction into this matter. I was informed that even though the victim's sister-in-law lodged a complaint against the alleged perpetrators mentioned above on August 10 (FIR no. 260/06 dated 10/08/06 under section of 324/34 of IPC), the Sonarpura police did not take any initiatives to investigate the incident and arrest the alleged perpetrators. They did not even visit the incident place. Sections 324 is about "voluntarily causing hurt by dangerous weapons or means" and section 34 is about "acts done by several persons in furtherance of common intention". 

 

I was also informed that the Sonarpura police, in particular the Investing Officer (IO) of this case Mr. A Laskar, deliberately delayed to add a non-bailable charge (section 304 of IPC) against the perpetrators in the Charge Sheet for 46 days after the victim's death. I was informed that when the police finally added this section into the charge sheet on September 30, meanwhile, taking advantage of apparently delayed police action, the alleged perpetrators became successful to get bail from the Court of Additional Chief Judicial Magistrate (ACJM), Alipore on September 12. They are now arrogantly intimidating the victim’s family not to pursue the case against them.    

I was also informed that the Asian Human Rights Commission (AHRC), Hong Kong wrote to Mr. Paul Hunt, UN Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health regarding this matter.

In light of the above, I strongly call for your immediate intervention into this matter. I urge you to appoint independent investigating authority to enquire the role of Investing Officer (IO) of Sonarpura Police Station for delaying the action against the perpetrators. If it is proven that the police inaction is due to the corruption, strong action must be taken those responsible. I also urge you to take proper action to arrest the alleged perpetrators and also inquire about the alleged intimidation on the victim's family by these people. I also urge you to initiate an extensive enquiry about the alleged negligence of government hospitals mentioned above which resulted into victim's death. Proper departmental and legal action must be laid against hospital staff responsible for such negligence. I also urge you to ensure that adequate compensation is given to the victim family.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Evaluating Medmal Cases



To accept or reject a medical negligence case: this is the single most important decision you will make when processing a medical negligence case. If you choose unwisely, either a case with good potential will be lost, or an unmeritorious case will tie you up for long periods of time at great expense.



To make an informed decision about accepting a case, you must have the facts, not only those you obtain from your client, but more importantly, those obtained from qualified medical experts after a thorough review of the medical records.



Case review is both a science and an art. The physician reviewer must be adroit at dissecting out the critical facts and determining whether or not the appropriate standards of practice were breached. Moreover, the reviewer must decide whether issues of causation clearly reinforce any alleged departures from the standard of care. Attention must also be given to damages. The issues can be quite complex. Are the injuries or disabilities due to malpractice or are they a maloccurrence, an unfortunate bad outcome that could not have been prevented? A few brief examples will illustrate how seemingly meritorious medical malpractice cases end with unequivocal defense verdicts.



CASE 1: When It Turns Out To Be An Accepted Risk Of A Procedure



The plaintiff was a 52 year old woman who suffered from esophageal achalasia, a condition in which the lower esophageal sphincter spasms and fails to relax. It results in difficulty swallowing. She went to a gastroenterologist who recommended pneumatic balloon dilatation or surgical repair (esophagomyotomy). The patient preferred the least invasive procedure and chose dilatation which was performed unsuccessfully three times by the defendant. On the third attempt, the plaintiff's esophagus was perforated. Esophageal perforation was a known risk of balloon dilatation to which plaintiff gave consent before the procedure. She underwent emergent surgical repair and suffered a prolonged hospitalization with serious infectious complications associated with the perforation.



The plaintiff alleged that repeat attempts at dilatation subjected her to increasing risk for perforation. She also alleged that the gastroenterologist was incompetent in the performance of the procedure and was directly responsible for negligently causing her injury. The defendant contended that he had done hundreds of dilatations without one complication, that he did this dilatation no differently than he did the others, that he had obtained sufficient informed consent from the patient, that the perforation was an accepted risk of the procedure, and that in this instance, the perforation was unexpected, unforseeable, and would have occurred with any other gastroenterologist performing the procedure.



The verdict was 12-0 in favor of the defense. Unexpected complications happen; but they're not always the doctor's fault.





CASE 2: When You Can't Clearly Substantiate Your Theory Of Causation



The plaintiff was a 36 year old woman who presented to a hospital for routine removal of her thyroid gland. The surgery went smoothly without complications. However, shortly after surgery in the recovery room she developed a hematoma and suffered a respiratory arrest. She was resuscitated and the hematoma was surgically evacuated, but a significant delay in treatment resulted in severe brain damage and the patient is now in a permanent vegetative state.



Counsel for the plaintiff alleged that the nurse in the recovery room failed to call the attending physician when she noticed the hematoma. She also failed to call the doctor when the patient suddenly was unable speak. The defendant contended that the nurse had been told that a certain amount of bleeding was normal and to be expected. The defendant also contended that the loss of the ability to speak was not accompanied with any other sign of clinical decompensation. The plaintiff's expert testified that the sudden development of the inability to speak suggested a compromised recurrent laryngeal nerve and required an emergency intervention. Defense experts testified that the development of the inability to speak could occur in the absence of a developing hematoma and without additional signs or symptoms and did not require urgent intervention under these clinical circumstances.



The verdict was 12-0 in favor of the defense. The burden of proof is on the plaintiff to demonstrate that, more likely than not, the injuries were due to a negligent act. But when, at the time of a clinical decompensation, there is an alternative reasonable explanation for the problem and the jury is convinced of its veracity, you will most probably lose your case.



CASE 3: When You Don't Name The Correct Defendant(s)



The plaintiff was a 17 year old student who fell while playing basketball and sustained a closed head injury with a brief period of unconsciousness. He also sustained clavicle and rib fractures as well as a wrist injury. His friends took him to the nearest emergency room where he was triaged by an intake nurse who astutely documented the extent and magnitude of injuries. The emergency room then contacted the doctor who was on call for the medical group with whom the plaintiff and his family maintained insurance coverage. The doctor, however, was not told of the head injury. He insisted that the patient receive his evaluation and care at another emergency department. No physician did a hands-on evaluation of the patient at the first emergency department. Upon arrival at the second facility, the patient deteriorated, underwent a CT scan of the head and a subdural hematoma was diagnosed. The second hospital did not have a neurosurgeon on-call, so the patient was transferred back to the first hospital. The delay in diagnosis and definitive management amounted to more than 5 hours. After evacuation of the clot, the patient was left with a moderate hemiparesis and mild cognitive impairment.



The attorney for the plaintiff sued the "gatekeeper" physician for the plaintiff's health plan alleging that he had no reason to request a transfer of the plaintiff to another facility and that this resulted in the prolonged delay in definitive management. He further alleged that the doctor failed to adequately inquire about the specifics of the plaintiff's fall and his neurologic status. The defendant contended that based on what he was told the patient was stable for discharge to another facility that accepted his medical coverage. He claimed that he asked the triage nurse pertinent questions specific to her case presentation.



The verdict was 12-0 in favor of the defense. The jury felt that it was an "insurance decision" and not a "medical decision" as to where the plaintiff should have been treated. By failing to name the first hospital and its emergency department staff as defendants, the attorney gave the case away. The responsiblity for the patient rested not with the gatekeeper but with the first hospital's emergency department. This is because the patient was not satisfactorily evaluated. Any patient with a history of head injury causing a loss of consciousness must be seen by a physician. These patients are considered medically unstable until cleared by a qualified physician. The triage nurse did not bring this case to the doctor's attention. The liability belonged to the first hospital, but they were not named in the lawsuit. The attorney, in working up his case, was not properly informed.



CASE 4: When Your Case Comes Down To The Physician's Word Versus The Plaintiff's Word



Plaintiff minor was 1 year old with a history of a congenital heart defect who in 1984 underwent open heart surgery to repair the defect. During this surgery he received a blood transfusion contaminated with the AIDS virus. He is expected to live no longer than his sixteenth birthday.



The plaintiff's mother alleged that she spoke to the defendant physician the night before the surgery and demanded that the family be allowed to donate blood for the child. She also said that the defendant told the family that it was too late to donate. The physician defendant claimed under oath that neither the plaintiff's mother nor any other family member ever requested direct blood donations. There was no documentation either way.



The verdict was 12-0 in favor of the defense. The most probable factor in the jury's decision was their propensity to believe the doctor; the doctor is innocent until "proven" guilty.



CASE 5: When You're Letting It All Ride On An Informed Consent Issue



The plaintiff was a 49 year old women with chronic knee pain who had undergone three previous failed arthroscopic knee surgeries. Because of ongoing pain and disability, her surgeon recommended total knee replacement surgery. She claims that her surgeon did not inform her at the time of obtaining informed consent that a revisional procedure was required shortly after the first procedure. The plaintiff alleges that had she known this, she would have refused the first surgery.



As it were, she suffered irreversible nerve injury. The plaintiff's expert orthopedist questioned the propriety of the total knee replacement, opining that it was an overly aggressive approach to the problem. The defense expert testified that the procedure clearly was a viable option and was within the standard of practice.



The verdict was 12-0 in favor of the defense. The jury felt that even if informed consent was inadequate, there was enough evidence that the procedure was one proper option and the best choice for fully ameliorating the patient's symptoms.



CASE 6: When Your Case Rests On One Easily Defensible Point



The plaintiff was a 42 year old man with a long history of hypertension. He presented to an urgent care center complaining of vomiting for several days. The only recorded vital sign was his temperature. The diagnosis was gastritis and he was prescribed an antacid. The next day he suffered a hemorrhagic stroke. His blood pressure was found to be 280/170, a true hypertensive emergency. He is now a hemiparetic and is completely disabled.



The plaintiff alleged that it is below the standard of care to not take the blood pressure as part of the routine evaluation, or to elicit the patient's history of uncontrolled hypertension. Accordingly, the plaintiff alleged that had the blood pressure been taken, he would have been admitted, his blood pressure emergently treated and the stroke would have been prevented. The defendant contended that it would have been his custom and practice to take a blood pressure regardless of the chief complaint and he believed that he did so but simply failed to record it since it was not significantly elevated. The defense position was that the stoke occurred after the visit to the urgent care center and could not have been anticipated by the defendant physician whose practice was clearly within the acceptable standards.



The verdict was 12-0 in favor of the defense. The jury had no problem vindicating the defendant who, they believed, did nothing wrong.



CASE 7: When You Can't Get Beyond The "Ordinary" Care Standard



The plaintiff was a 54 year old man with a history of a prior small myocardial infarction who, under the supervision of a cardiologist, was rehabilitated to excellent health. All stress treadmills, echocardiograms and electrocardiograms were without abnormalities. Prior to a planned strenuous hiking trip, he underwent a stress treadmill. During this study, he had a sudden drop of blood pressure when his heart rate was near its maximum for the study. The doctor erroneously concluded that this abnormality was spurious and represented no danger. His patient, while hiking one week later, suddenly collapsed and died.





 

At trial, the plaintiff's expert provided a scientifically correct physiologic explanation for the drop in blood pressure, stating that this represented a drop in cardiac output which was due to left ventricular dysfunction. But the defense retorted that by customary standards, the treadmill results were excellent without any ECG changes. By widely accepted criteria, the patient could be categorized as functional class 1, with no exercise limitations.



The verdict was 12-0 in favor of the defense. The jury justified their decision by saying that the doctor's oversight did not breach the "reasonable" or "ordinary" care standard, even though they were convinced that the sudden drop in blood pressure was, more likely than not, due to serious cardiac dysfunction. This reinforces the jury instruction that physicians do not have to be "perfect" in their practice of medicine; they only have to meet a "reasonable" or "ordinary" care standard.



CASE 8: When Minimal Or No Damages Result In Exoneration Of The Negligent Doctor



The plaintiff was a 42 year old woman who told her regular physician that she had noticed a lump in her right breast. Her doctor thought the lump was consistent with benign fibrocystic breast disease and did not order a mammogram, even though she requested one. She returned twice more to the doctor for unrelated complaints. The chart did not document breast complaints, however, the patient was adamant that on both occasions, she told the doctor about the breast mass and asked twice for mammograms. She said that the doctor dismissed her concerns and denied her requests for a mammogram.



Finally, on the fourth visit, 13 months after her initial visit, the doctor acquiesced and ordered a mammogram which revealed a malignancy. She underwent a partial mastectomy and the tumor was characterized as Grade I with no lymph node involvement. At trial, the plaintiff was in excellent health without recurrence and it was the opinion of the defense experts that she was entirely cured.



The verdict was 12-0 in favor of the defense. Although the jury was critical of the doctor's delay in diagnosing the tumor and felt that this was a clear breach in the standard of care, because the plaintiff appeared cured and there was no evidence of metastasis, they were reluctant to damage the respectable doctor's reputation by returning a plaintiff verdict.



CASE 9: When A Delay In Diagnosis And Treatment Doesn't Change The Prognosis



The plaintiff was a 33 year old woman who had a new breast mass evaluated by her physician. He did an immediate needle biopsy which was negative and he decided not to order a mammogram. A year later, she was diagnosed with terminal metastatic breast cancer.



The verdict was 12-0 in favor of the defense. Although jurors agreed that the standard of care had been breached in that a negative needle biopsy should be followed by a mammogram or surgical biopsy, they believed the defense expert oncologist who testified that based on the grade and stage of the tumor at the time of the diagnosis one year earlier, the cancer was already terminal. Earlier diagnosis and treatment would not have altered the course of the disease. Thus, the plaintiff's attorney could not successfully establish "causation" and lost the case.



CASE 10: When A Plaintiff's Damages Don't Justify A Plaintiff Verdict



The plaintiff was a 46 year old cab driver who visited an orthopedist with complaints of right knee pain. The physician's exam which focused only on the knee was negative, as was an x-ray of the knee. The doctor was told by his patient that many years earlier, he had a mid shaft tibial fracture which required open reduction and internal fixation. However, the physician did not examine the area, nor did he order x-rays of the mid-tibial area. Instead, he referred the patient to a neurologist for evaluation.

 



The defendant neurologist interviewed the patient but did not conduct a focused

neurologic exam postulating instead that the patient's pain was due to meralgia

paresthetica-entrapment of a nerve in his thigh. He prescribed anti-inflammatory medication and told the patient that he would improve over time.



The patient was seen weekly for several months without any improvement nor any direct examination of the leg. Ultimately, his pain worsened and he was diagnosed in a local emergency room with advanced tibial osteomyelitis. He underwent debridement and was hospitalized for a two week course of intravenous antibiotics. He eventually healed. His only residual was a gross cosmetic defect in his mid-tibia. This deformity did not prevent him from returning to work.



He sued the neurologist and orthopedist contending that they failed to include in their differential diagnosis the obvious possibility of a tibial complication. With appropriate diagnosis and care, he would have avoided surgery and the grotesque leg defect.



At trial, even the defense attorney conceded that the standard of care had been breached, yet he pointed out that worker's compensation paid for all the medical bills, that sick leave took care of his lost wages, and that the defect did not preclude his returning to work.





The verdict was 12-0 in favor of the defense. The jurors concluded that both doctors were negligent and that their carelessness was a direct proximate cause of the patient's injuries. But when faced with the decision of whether they should penalize the doctors with a reputation-damaging plaintiff verdict, they decided to act in their favor. The doctors were obviously negligent, yet the jury found in their favor. Why? Simply, juries tend to be sympathetic towards physicians, especially when the monetary loss is minimal and the disability minor, such that it hardly interferes with a plaintiff's normal personal and professional life.







There are other reasons why you should think twice about taking a medical negligence case. Several of them are listed below:



1. The medical issues are complex. The more complex the medical issues, the more difficult it will be to convince the jury that the doctor committed malpractice. If a case involves multiple physicians, some of who committed no negligent acts, it may be exceedingly difficult to separate out the truly negligent care. Jurors may view this kind of lawsuit as an unwarranted attack on everyone. Plus, from the expert point of view, your case will be more expensive to litigate. Thus, you should be sure that damages are substantial.



2. The patient underwent a medical procedure for cosmetic rather than medical reasons. Jurors often believe that these people are vain and that they assume all the risk of a bad outcome.



3. The plaintiff's condition is such that delayed diagnosis or misdiagnosis did not result in significant additional injury and would not have changed the prognosis. Jurors often find the "so what" defense compelling enough to excuse medical negligence.



4. When the defense medical experts include the follow-up care physicians, their credibility usually exceeds the credibility of the plaintiff's experts.



5. Damages resulting from the injury are too small to justify the time and expense of litigating the claim.



6. The defendant is a well-known and highly respected physician that most reputable medical experts refuse to testify against. It may be very difficult to find an appropriate expert; and even if one is found, because of the defendant's standing in the medical community, it may be more difficult to obtain a judgment against him. Also, if the procedure, treatment, or medical subspecialty is rare, then it will be very difficult finding a qualified medical expert witness to testify.



7. The case hinges only on informed consent or misrepresentation issues. This often pits the health care provider against the plaintiff in terms of credibility and honesty. Furthermore, it will be difficult to convince a jury that the plaintiff would not have agreed to the procedure or treatment if properly informed of its risks.



8. Causation can not be satisfactorily established. Cases will be lost in these situations even when care was grossly negligent.



9. A plaintiff has exacerbated the damage by not following the physician's instructions. For example, did the plaintiff add to the damage by walking on a leg despite non-weight bearing orders?



10. When a shortened life-expectancy existed anyway from non-related conditions. For example, even though a 40 year old man bled to death on the operating room table due to physician error, this patient had terminal lung cancer and a very short life-expectancy.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Emerging Trends in Consumer Cases

Various judgements and laws have changed the legal landscape of the healthcare sector.

The health sector flourished unquestionably, till the evolution of Law of Torts in England, under Civil laws. The Law of Torts gave place for consumer laws, which questioned the impeccable authority of the health sector. The sector received a jolt when the judgement and order of the



Supreme Court of India (SC) was pronounced on 13/11/1995 in The Medical Association of India Vs VP Shantha (AIR 1996 SC 550). The medical and para-medical professionals hitherto, questioned under Law of Torts became vulnerable to be questioned under Consumer Law too.

Law of Torts

A tort means ‘wrong’. It is a violation of the general duty which every member of the society is obliged so as not to do any harm without lawful justification or excuse. If by the act of an individual, an injury is caused to a third person, the affected person is entitled to claim compensation from the doer. Under the Torts, only the petitioner has to prove the case against the respondent. However, if the damage and injury is quite apparent to the core, the principle of res ipso loquitor is applied and the defendant has to prove that he is not guilty.

Consumer Act 1986

As the Law of Torts comes under civil law, the Code of Civil Procedure 1908 becomes applicable. The parliament enacted the Consumer Protection Act 1986, providing three types of Tribunal (not courts) so that summary trials are possible and the complainant need not pay any fees for suits. Three-tier system of disposing the consumer disputes are provided from district level (District Consumer Disputes Redressal Forum), state level, (State Consumer Disputes Redressal Commission) and nation level (National Consumer Disputes Redressal Commission). After the National Commission, the final appeal can be made with the SC. The pecuniary jurisdiction is upto Rs 10 lakh for District Forum, from Rs 10 lakh to Rs 1 crore for State commission and beyond Rs 1 crore for the National Commission.

The Provisions of the Act were not extended to the medical professionals when it was enacted in 1986. But the provisions were enlarged due to the judgement of the Supreme court in The MCI Vs VP Shantha case. Immediately, a flood of cases were filed against the medial professionals, para-medical staff, diagnosis centers and drug manufacturers.

 

 

Defence Taken by Hospitals

When too many hurdles are raised against a sector, it evolves new ways and means to defend itself strategically. The following methods are strengthened now which were not given importance before 1995:

A) Doctrine of Estoppel: The Doctrine of Estoppel, hitherto applicable to civil laws, turned out to be helpful to the medical sector. Estoppel means if an individual acts or deposes before an institution/judicial forum about a particular fact, he cannot go against the same in a later date. In short, by obtaining 'informed consent' from the patient properly, the hospitals/medical professionals set a proper ground for defence before a court or forum.

B) Application of Bolam Test: The British Court during 1954 by its order in ‘Bolam Vs. Frien Hospital Management’ has decided that a medical professional would be absolved of any allegation of any negligene, if he practiced a sufficient care to select a procedure which is normally followed in that course of time and in that place. It also set three criteria for the safety of the medical professional:

(i) He must possess adequate skill in that area of medical practice;

(ii) He exercises reasonable care while performing his skill.

(iii) Mere negligence will not make out a case for compensation against him but that negligence should have a direct nexus with the injury caused to the complainant. If the injury does not have a direct link towards negligence, no award of compensation exists. The SC adopted the principles enunciated in the Bolam Test fully and followed in all their historical judgements in Dr Laxman Balakrishnan Joshi Vs D Trimbak, Bopu Godbok and Anr (AIR 1969 SC 128), AS Mittal & Ors Vs State of Uttar Pradesh and Ors. (AIR 1989 SC 550) Indian Medical Association of India Vs VP Shantha & Ors (AIR 1996 SC 550, Spring Meadows Hospital Vs. Harijit Ahluwalia (AIR 1998 SC 1801) and lastly in Kunal Saha Vs Dr Sugumar Mukherji & Ors (2006(2) CPR 14 (NC) P. No. 62).

Following the orders of the SC, all consumer for a followed the principles and saved the medical fraternity from awarding compensation.

C) Jacob Mathew Vs State of Haryana: In this case, the SC saved medical professionals from being harassed by the State through its prosecution authorities. This is how it evolved. A patient died because of cancer. The relatives of the patient, highly influential in politics, brought criminal proceedings against the doctor who was working in CMC, Ludhiana. The bail petitions filed before the District Sessions Court and High Court were dismissed, thus paving way for his imminent arrest. While he filed a revision petition before the SC, it quashed the FIR and laid down principles to be followed while dealing with such cases against medical professionals by the State. It laid down that:

(i) The prosecution must be convinced that there is a criminal negligence on the part of the doctor.

(ii) It distinguished between the negligence of tort and criminal negligence.

(iii) The prosecution may proceed further if a case is made out, only after obtaining a medical report from a doctor who has specialised in that branch of specialisation, preferably working in a Government hospital.

Latest Trend

The case decided in Dr Kunal Saha Vs Dr Sugumaran Mukherjee & Ors (Supra) became a milestone judgement towards the jubilation of the medical fraternity. In this case, a claim for Rs 77,76,73,500 was made by a complainant who himself is a medical professional. He took treatment for his wife Anuradha both in AMRI Hospital, Calcutta and Breach Candy Hospital, Mumbai. She died of Toxic Epidermal Necrolysis (TEN). The verdict dismissed the claims on the following grounds:

(i) There is a contributory negligence on the part of the complainant himself.

(ii) The patient was brought to Mumbai from Kolkata against medical advice.

(iii) Medical professional gave their best treatment available in India in this particular time and place.

(iv) Award of this nature, if granted, may cause a rise in professional insurance by the hospitals and indirectly the premium paid to the insurance company may pass on to the poor patient as in existence in the US.

 

 

 

 

 

 

 

 

 

Medical Law

Reporter

 

2007 Med LR 189

 

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION,

NEW DELHI

 

Hon’ble Justice Mr. S.N. Kapoor, Presiding Member

Hon’ble Mr. B.K. Taimni, Member

First Appeal No. 528 of 1997

Decided on 17-10-2006

 

Kurien Abraham and Others

vs.

Dr. Omana Jacob and Others

 

MEDICAL NEGLIGENCE – DELIVERY OF CHILD – No Doctor attending on patient resulting in her death – Deficiency-in-service – Hospital directed to pay Rs. 2,70,000 along with interest to complaints.

 

SUMMARY OF FACTS

 

The patient, aged 27 years, on getting pregnant for the first time, being under care of first respondent, attending gynaecologist from the beginning, was admitted in the hospital for the delivery of child. The patient was removed to the labour room at 8.30 a.m. but the doctor was not seen after that either by the patient or by her relatives. A baby was delivered but the mother having developed certain complications after the delivery died on the same evening. The relations of the patient filed a complaint alleging deficiency in rendering medical service, claiming compensation of Rs. 15 lakhs. The State Commission holding the hospital medically negligent for absence of the attending gynaecologist from the beginning directed it to pay Rs. 25,000 along with cost of Rs. 2,000 to the complainants. No appeal filed by the doctors or the hospital. However, in appeal filed by the complainants, the National Commission enhanced the amount of compensation to Rs. 2,70,000 considering that the deceased patient was a young lady, aged 27 years who was a qualified ‘graduate High School teacher’, earning Rs. 3,000 per month in year 1995.

 

HELD [NATIONAL COMMISSION]

 

Leading allegation amounting to medical negligence is related to the non-attendance of the first respondent Dr. Omana Jacob from 8.00 a.m. on 17.11.1995 onwards as she was the attending gynaecologist from the beginning as far as the deceased was concerned. The material brought on record clearly shows that no doctor was available to take care of the deceased till late in the afternoon, when she was attended to by the second respondent Dr. Jossetta. Ld. State Commission.

 

As per material on record, the second respondent Dr. Jossetta one of the Sr Gynaecologists admitted before the State Commission that on 17-11-1995, she had ‘Theatre duty’ and went to the labour room where the patient was lying only after she was informed of the condition of the deceased at the post-delivery stage and after serious complications had arisen, which resulted in the death of the patient. According to both respondents 1 and 2 it was Dr. Laila George who was on duty yet there was no reference to this in the written version filed by them before the State Commission or in the material on record, thus, clearly leading the State Commission to conclude that from the time the deceased was moved into labour room and till the time she had serious complications there was no doctor attending on the deceased which as rightly held by the State Commission is a clear case of deficiency resulting in the death of the deceased.

 

In the above circumstances, State Commission, in our view, rightly held the 5th respondent guilty of medical negligence. No appeal has been filed by the respondents which reassure us that they had accepted their medical negligence.

 

This is a case of death by negligence on the part of the respondents and appeal has been filed by the appellants/complainants for enhancement of compensation. We also see in the complaint filed before the State Commission they had asked for a compensation of Rs. 15 lakhs, of which they have not given any break-up and State Commission has also shown no ground based on which they have arrived at a figure of Rs. 25,000 awarding as compensation for loss of life of 27 years old lady who was a qualified ‘graduate High School teacher’ and there is no material brought on record to rebut this. In such circumstances, we find that the State Commission has not awarded the compensation commensurate with the loss caused to the appellants. In view of above, in our view, the deceased who was a qualified graduate High School teacher would be earning Rs. 3,000 per month way back in 1995. 50% is set off as expenditure and balance 50% would be Rs. 1500 per month, meaning thereby for a year she would be contributing/saving Rs. 18,000 using a multiplier of 15, the appellants would be entitled to a sum of Rs. 2,70,000 in all, as she died at a young age of 27 years. We have not taken into calculation possible revision in pay-scales/career advancement in future

.

IMPORTANT LAW POINT

+ Where from the time the pregnant lady was moved into labour room and till the time she had serious complications resulting in her death there was no doctor attending on the deceased patient, it was rightly held as a clear case of deficiency-in-service.

 

 

 

 

 

 

 

 

 

2007 Med LR 314

 

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION,

NEW DELHI

 

Hon’ble Mr. Justice K.S. Gupta, Presiding Member

Hon’ble Dr. P.D. Shenoy, Member

 

Revision Petition No. 1991 of 2004 and

Revision Petition No. 2395 of 2004

Decided on 19-1-2007

 

Shridevi Hospital and Shridevi Diagnostic & Research Centre, Tumkur

vs.

P. Subhash

 

MEDICAL NEGLIGENCE – FRACTURE OF LEG – Vascular Injury – Failure of doctors in the diagnosis and treatment of the injured – Not conducting Doppler test and not referring the patient to vascular surgeon – Amputation of leg as gangrene had set in – Neither discharge summary nor copies of case records given to the patient by the hospital – Award of compensation of Rs. 2,25,000.

 

SUMMARY OF FACTS

 

The complainant, a minor suffered serious injuries to his left leg and was taken to Shridevi Hospital. After about three days, the doctor there advised the father of the injured to shift his son to Bowring Hospital where he was examined by an Orthopaedic Surgeon who informed the father of the injured that gangrene had set in and the left leg was required to be amputated to save the life of the injured. He was told that if the injured had been treated for vascular injury soon after the accident, the left leg could have been saved.

 

The complainant claimed compensation of Rs. 5 lakhs alleging criminal negligence on the part of the doctors at Shridevi Hospital in the diagnosis and treatment of the injured. The District Forum directed the concerned doctors at Shridevi Hospital to pay jointly and severally compensation of Rs. 1,75,000 to the complainant. In appeals filed by the parties, the State Commission enhanced the compensation from Rs  1,75,000 to Rs. 2,25,000. Both District Forum and State Commission concurrently held the three doctors negligent in treating the patient. The National Commission upheld the findings recorded by the fora below considering that as the DP Pulse and post tibial pulse of the injured were feeble, the doctors should have performed Doppler examination to find out whether there was any vascular insufficiency and whether there was any serious threat to the vascularity of the leg.

 

 

 

HELD [NATIONAL COMMISSION]

 

In the present case it is evident that the D P Pulse and post tibial pulse were feeble. That being so, the respondent No. 2 should have performed Doppler examination to find out whether there was any vascular insufficiency and whether there is any serious threat to the vascularity of the leg. This amply makes it clear that in such cases every medical man should be able to recognize the presence of severe vascular trauma in limb injuries so that urgent steps should be taken to shift the casualty to proper hospitals and save the limbs.

 

As against this the hospital authorities or treating doctors have failed to produce any extract of any medical text to support their contention. This shows clear negligence on the part of Dr. Tyagaraju in not conducting the Doppler test and not referring the patient to vascular surgeon. As can be seen from the case records of the hospital, there is no proof of evidence produced before us to show that copies of the Shridevi Hospital records were not handed over to the complainant’s father. Even the discharge summary was not given to him. Neither the discharge summary nor copies of the case records were given to the patient or to his father by the Shridevi hospital. This is not generally done by any responsible hospital. Further a perusal of the case records indicates that the signature of the father of the complainant was taken only on the case record pertaining to 13.05.2000 but there is no signature of the treating surgeon after the above case record. On other days why signatures were not taken is baffling.

 

The State Commission has re-appreciated his evidence and observed that if really the said Sound Doppler Test had been conducted on 13.05.2000 it should have been mentioned in the case sheet dated 13.05.2000, but this has been mentioned only on 14.05.2000. We feel that such an important occasion cannot miss the attention of the doctors and they would have definitely mentioned it in the case sheet if the test was done on 13th. We fail to understand why the respondent No. 3 gave a letter to the father of the injured referring the name of Dr. Ramesh of Bowring Hospital only on 15th and why he did not hand over all the case sheets and discharge summary to the father of the injured. Hence, looking from any angle it is difficult to assail concurrent findings of the fora below that the respondent hospital and the treating doctor/surgeons were negligent. Now coming to the claim of the complainant that compensation should be enhanced. Though there appears to be some merit in this claim we are not in a position to accede to this request as fora below have awarded a fairly high rate of interest i.e. 12% per annum from the date of the complaint i.e. 12.07.2000.

 

RESULT

Complaint Allowed.

 

BOOKS REFERRED

‘Fractures’ in Children Volume (3) Fourth edition

 

COUNSELS

For the Petitioners: Shri B. Vishwanath Bhandarkar, Advocate.

For the Respondents: Shri Byendra Singh, Advocate.

 

IMPORTANT LAW POINT

 

+ In cases of injuries to the lower and upper limb fractures, the medical man should be able to recognize the presence of severe vascular insufficiency in limb injuries so that urgent steps should be taken to shift the casualty to proper hospitals and save the limbs.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

2007 Med LR 655

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION,

NEW DELHI

 

Hon’ble Mr. B.K. Taimni, Presiding Member

Revision Petition No. 350 of 2007

Decided on 27-2-2007

 

Dr. Arul Raj

vs.

N. Ramanathan and Others

 

MEDICAL NEGLIGENCE – INTENSIVE CARE UNIT – Non-supply of oxygen to patient who was on ventilator – Oxygen got exhausted – No spare cylinder in ICU  Wastage of time in getting it replenished – Death of patient – Deficiency-in-service.

 

SUMMARY OF FACTS

 

Wife of the complainant suffering from severe pain in stomach and chest was admitted in the hospital and kept in Intensive Care Unit and was on oxygen continuously. At 5.00 p.m. on 9.12.1998 the oxygen cylinder got exhausted, as there was no spare oxygen cylinder provided in the ICU, the second cylinder was rushed from the ground floor but it was found to be defective. Meanwhile, the patient was gasping due to lack of oxygen supply and she died around 6.30 p.m. on 9.12.1998. A complaint filed alleging medical negligence against the doctor was allowed. The doctors were directed to pay Rs. 3,00,000 as compensation.

 

HELD [NATIONAL COMMISSION]

 

There is a concurrent finding of the fact on the point of non-supply of the oxygen to the deceased. The patient was on ventilator in the ICU. The oxygen got exhausted. There was no spare cylinder in the ICU and when the spare cylinder being brought to second floor the lift did not stop there and finally when the cylinder did come it was found to be defective and oxygen did flow out. Both the lower fora have held this to be a clear

case of medical negligence.

 

RESULT

Complaint Allowed.

 

IMPORTANT LAW POINT

+ Non-supply of the oxygen to the patient resulting in her death when she was on ventilator in the Intensive Care Unit, for non-availabi-lity of any spare cylinder in the ICU is medical negligence.

 

 

 

2007 Med LR 657

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION,

NEW DELHI

 

Hon’ble Mr. Justice K.S. Gupta, Presiding Member

Hon’ble Dr. P.D. Shenoy, Member

 

Revision Petition No. 1368 of 2000

Decided on 21-2-2007

 

Dr. Balagopal Perinthalmanna

vs.

K.V. Radhakrishna Menon & Others

 

A. MEDICAL NEGLIGENCE – MEDICAL RECORDS – Refusal to give any treatment records either to the patient or even to the District Forum – Adverse inference can be drawn against the doctor and the Nursing Home.

 

B. MEDICAL NEGLIGENCE – APPENDISECTOMY – Wrongly diagnosing ailment – Second surgery to remove gangrene to rectify obstructions in the intestine – Death of patient – Refusal to give treatment records – Deficiency-in-service – Award of compensation of Rs. 1,50,000.

 

SUMMARY OF FACTS

 

A patient with a complaint of abdominal pain had gone to a Doctor wherein he performed exploratory laparotomy and removed the appendix. Subsequently the patient had to be re admitted in the same Nursing Home but as the situation did not improve she was taken to the District Hospital where surgery was performed for removing the gangrene and to rectify all the obstructions in the intestine and the patient died after about a month. A complaint was filed alleging medical negligence stating that the doctor did not even get the consent from the patient before conducting the first surgery and that he did not properly diagnose the disease. The doctors having failed to produce the consent form and also the detailed records of treatment in their Nursing Home, an adverse inference was drawn in favour of the complainants.

 

HELD [NATIONAL COMMISSION]

 

It is clear from the records that OPs have failed to produce the consent form and they even failed to produce the detailed records of treatment in their Nursing Home despite the fact that she stayed in the Nursing Home on two different spells. If the patient was relieved of her pain on the date of her discharge i.e. 20.9.1996 why she had to be re-admitted in the hospital poses a serious question. Further, it is not the case of the revision petitioner that the patient was relieved of her pain and hence she was discharged on 4.10.1996. The State Commission refers to a letter about the condition of patient from the opposite party’s hospital wherein Dr. Balagopal stated that the post-operative period was stormy and she had paralytic ileus. It is also clear from the records that she had to be re-admitted with pain and vomiting on 29.9.1996. Despite complainants petition to produce the records before the fora below, the treatment records were not produced by the Ops.

 

RESULT

Complaint Allowed.

 

COUNSELS

For the Petitioner: Shri K. Rajeev, Shri Alex Joseph, Advocates.

For the Respondent: Ms. Bina Madhavan, Shri Hemal Sheth, Advocates.

 

IMPORTANT LAW POINT

+ When the doctors have failed to produce the consent form and they even failed to produce the detailed records of treatment in their Nursing Home despite the fact that the patient stayed in the Nursing Home on two different spells, adverse inference about medical negligence has to be drawn against the treating doctor and the Nursing Home.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

2007 Med LR 486

GUJARAT STATE CONSUMER DISPUTES REDRESSAL COMMISSION, AHMEDABAD

 

Hon’ble Mr. Justice M.S. Parikh, President

Hon’ble Dr. M.K. Joshi, Member

Hon’ble Mrs. Leenaben P. Desai, Member

 

Appeal No. 113/03 & 8/03

Decided on 22-1-2004

 

Dr. Yogendra A. Pandya and Another

vs.

Mrs. Harshaben C. Patel and Others

 

MEDICAL NEGLIGENCE – ANAESTHESIA – Anaesthetist leaving operation theatre immediately after extubation – Surgeon allowing Anaesthetist to go without verifying that patient was really out of anaesthesia or not – Patient remained unconscious and ultimately died – Deficiency-in-service.

 

SUMMARY OF FACTS

 

The patient having hernia was operated under general anaesthesia. The operation was completed at 1 p.m. but his breathing was stopped soon after operation. Doctors continued the treatment till 1 p.m. but the patient remained unconscious and his condition did not improve. He was referred to another Hospital where he died. There was nothing to show that the patient was fully conscious at the time of extubation but the Anaesthetist had left the operation theatre immediately after extubation and surgeon had allowed him to go without verifying that patient was really out of anaesthesia or not. Complaint filed by wife and children of the patient was allowed. The State Commission held it a case of gross deficiency in service.

 

HELD [STATE COMMISSION]

 

At the outset, it is important to note that even as per the medical record the surgery was completed at 1.00 p.m. and extubation was also done at the same time. However, there is nothing on record how the induction of general anaesthesia was done, which gases or drugs were used, how the patient was maintained during surgery, what were his vital signs like pulse, B.P. or respiration rate during surgery and what was the condition of the patient at the end of the surgery. In other words there is nothing on record to show that patient was fully conscious at 1.00 p.m. i.e. at the time of extubation. Now according to the medical record itself the air-way was obstructed either by secretion and/or tongue fall because of untimely extubation. In this context it is to be noted that O.P.2 (Anaesthetist) left the operation theatre immediately after extubation at 1.00 p.m. and O.P. 1 (Surgeon) allowed him to go without verifying that patient was really out of anaesthesia or not. The duty of the anaesthetist does not end till the patient fully recovers from the effect of anaesthesia. For practical purpose it is the duty of the anaesthetist also to see that patient is shifted to the ward and kept there in proper position and carry out last clinical examination there before he leaves the hospital. As per the record respiratory depression was noticed at 1.10 p.m. (it does not mean that it developed at that time), then cyanosis and cardiac arrest which ultimately resulted in death of the patient.

 

                                              Everything happened in four walls of the operation theatre just after surgery. The anaesthetist left the theatre at least with implied consent of the surgeon. The patient was not monitored for vital 10 minutes i.e. from 1.00 p.m. to 1.10 p.m. The complications were first noticed at 1.10 p.m. then anaesthetist was called again and patient was re-intubated at 1.22 p.m. (such specific, timings are rarely seen in medical record). Thus, what was the condition of patient at the time of extubation, what happened after surgery and extubation, why patient was not shifted to ward, why anaesthetist left before shifting the patient to ward, who monitored the patient during that period, what steps were taken for prevention are the questions which remained unanswered. These are the facts which are within the special knowledge of the opponents and they have failed to explain them in any manner and this certainly amounts to deficiency in medical service on the part of the opponents.

 

RESULT

Complaint Allowed.

 

COUNSELS

For the Appellants: Mr. R.M. Shah, Advocate.

For the Opponent No. 1: Mr. H.M. Bhagat, Advocate.

For the Original Opponents No. 2 & 3: Mr. H.J. Bhatt, Advocate.

 

IMPORTANT LAW POINT

+ The duty of the anaesthetist does not end till the patient fully recovers from the effect of anesthesia. The anaesthetist leaving the operation without verifying whether that patient was really out of anaesthesia or not amounts to gross deficiency in service on his part.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

An

 

 

 

y offence punishable under this Act shall be tried in the court of a Metropolitan Magistrate or a Judicial Magistrate of the first class.

 

dDONATION OF CORNEA

 

 

 

 


[1]  1957 2 ALL ER 118

 

[2]  (2005) 6 SCC 1

[3]  (2004) 6 SCC 422

 

[4]  (2004) 6 SCC 429, para 21

[5] 1991(1) Bom. C.R. (p. 629)

[6] (1995) 6 SCC 651

[7] Section 2(1)(g)

[8] Section 2(1)(d)(ii)

[9] (2000) 7 SCC 668

 

[10] (2002) 6 SCC 635

[11] (1998) 4 SCC 39

[12] 1998 3 CPR 398 (BOM)

[13] 2004 3 CPR 27 (NC)

[14] 1998 1 CPR 165 (Cal)

[15] 1994 3 CPJ 89

[16] II (1992) CPJ 449

[17] AIR 1969 SC 128

[18] Vol. 30 Fourth Edition, p.31 para 34

[19] 1975 M. L.J. 792

[20] (1996) 4 SCC 332

 

[21] Street on Torts (1983) 7th Ed.

[22] AIR 74 SC 876

[23] AIR 1995 P&H 278

[24] (2001) 8 SCC 731

 

[25] (1989) 3 SCC 223

[26] 2004 3 CPJ 37

[27] 2004 3 CPJ 29 (NC)

[28] 1999 1 CPJ 332

[29] 2004 2 CPJ 14 (NC)

[30] 2003 1 CPJ 180

[31] 2001 1 CPR 70

[32] 2004 3 CPJ 19 (NC)

[33] 2003 2 CPJ 125

[34] (2004) 8 SCC 56

[35] 2002 2 CPR 151

[36] 1993 3 CPR 435 (Bom)

[37] 2004 1 CPJ 257

[38] (2005) 7 SCC 1

[39] 1986 1 ALL ER 488


Source : internet & Books,nil



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4 Comments for this Article



BANTI SAGAR

BANTI SAGAR

Wrote on 14 April 2013

Dear Sir this is not only useful study material to law student I think its may be too useful all of them who are under study of legal studies thanks to your efforts for our success......



A.A.JOSE BARODA

A.A.JOSE BARODA

Wrote on 06 September 2011

My dear Mr.Aman Grewal, This is really an excellent comparative study and analysis of settled legal position on medical negligence. Needless to say that your painstaking contribution will be useful to one and all. Keep up. With warm wishes.



Amandeep singh Grewal

Amandeep singh Grewal

Wrote on 01 December 2009

My pleasure dear......... :-)












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