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Hemant Agarwal (ha21@rediffmail.com Mumbai : 9820174108)     18 February 2009

Medical Experts opinion must to prosecute Doctors : SC

Dear All,
The following appeared in  "Times of India", Mumbai Edition on February 18,2009, page no. 01.
May be useful for future references.

WELL ... Well ... well ... there goes phut several judgements of the Consumer Court which faulted doctors for their medical negligence.  Let the doctors jump in glee and let them use their instruments like a very very bad cook. 

SC says that the judges are not qualified in medical negligence cases  (so it is in case of 540 members of the parliament, who pass such law bills)  ... heeee .... heee... hee....

The express & implied presumption now is that SC can refrain from considering the general interest of the people (say  democracy).  In other words it is saturation of the judiciary.  Hope the SC takes a trip to the USA & UK, to study the way medical negligence cases are handled and the millions of dollars being doled out to the litigants.

SC must sure love the doctors AND would be really believing the maxim that doctor are next to God. (hey RAM). 
 

===

Medical Experts opinion must to prosecute Doctors : SC

   In a landmark judgment, the Supreme Court on Tuesday stepped in to check the harassment of doctors in medical negligence cases. A division bench of Justice Markandey Katju and Justice G S Singhvi held that consumer and criminal courts would have to seek the opinion of a doctor or a panel of doctors before issuing a notice to a medical practioner or hospital in a case alleging negligence. 
   The fresh guidelines set by the apex court stipulate that whenever a consumer forum or criminal court receives a complaint against a doctor, it should refer the matter to a panel of experts in the field. Only after the committee reports that there is a prima facie case of medical negligence should a notice be issued to the concerned doctor or hospital. 
   “This is necessary to avoid harassment to doctors who may not be ultimately found to be negligent,’’ the bench observed. It added, “The courts and consumer fora are not experts in medical science and must not hold their own views over those of specialists. It’s true that the medical profession has to an extent become commercialised and there are many doctors who depart from their Hippocratic oath for the selfish ends of making money. However, the entire medical fraternity cannot be blamed or branded as lacking in integrity or competence just because of some bad apples.’’
   The court underscored that earlier guidelines required the police to seek medical opinion before registering an FIR.

Cops flouting medical case norms could face action: SC

Mumbai: The Supreme Court on Tuesday warned police officials against arresting or harassing doctors, and to follow existing guidelines that require the police to seek a medical opinion before registering an FIR in case of a complaint against a doctor. 
   “Otherwise the policemen will themselves have to face legal action,’’ said the judges. Under existing guildelines, arrest is permitted only if absolutely essential to investigation.
   The matter before the court during Tuesday’s hearing pertained to a 17-year-old case filed by Delhi resident and senior Union commerce ministry officer Mohammad Ishfaq against a Mumbai-based doctor practising at Nanavati Hospital. Ishfaq, who suffered from chronic renal failure and was awaiting a kidney transplant, had undergone treatment for a brief period with physician Martin D’Souza for urinary tract infection and also blood infection. Ishfaq alleged that an overdose of theantibiotic Amikacin (prescribed to treat the infection) had led to hearing impairment. The National Consumer Disputes Redressal Commission in 2002 awarded Ishfaq a compensation of Rs 7 lakh. The apex court, however, did not agree.
   “Extraordinary situations require extraordinary remedies,’’ remarked the SC judges. “Even assuming that such a high dose of Amikacin would ordinarily lead to hearing impairment, the doctor was faced with a situation (where he had to choose) between the devil and the deep sea. If he chose to save the life of the patient rather than his hearing, surely he cannot faulted.’’
   The court also emphasized the importance of a scientific temperament, pointing to the cases of the Iranian conjoined twins and the first heart transplant in South Africa which had ended in failure.
   Closer home, the judges referred to research by AIIMS into stem cell therapy that had not yet resulted in notable success. “This does not mean that the work of stem cell therapy should stop, otherwise science cannot progress,’’ said the bench.
   The judges also underlined two cardinal principles—one, that judges are laypersons and not experts in the medical sciences and two, that “like all professionals, doctors too can make errors of judgment. But if they are punished for this, no doctor can practise his vocation with equanimity’’.
 

 

 

Keep Smiling ... HemantAgarwal
 



Learning

 12 Replies

PALNITKAR V.V. (Lawyer)     18 February 2009

absolutely right. Unless some expert in the field is examined it is not possible for a layman to decide whether a doctor is negligent.

1 Like

sanjay singh thakur (advocate)     19 February 2009

Now after this very judgement to what extent one can take the plea of the principle of Res ipsa Loquitur.

1 Like

(Guest)

In a matrimonial suit wife alleges that due to certain acts of cruelty (which have not been stated though) she has become patient of "reactive depression" thus she should be granted mental cruelty grounds based divorce decree. It is her own Divorce petition BTW.

(1) Husband first files a Notice to Produce Application to wife to bring to court records of "psychiatric examination reports" which states she is patient of "reactive depression". Wife's side refuses to reply to such application on record. Judge dictates in day's proceeding Order that advance argument on this matter on next date and it has been 2 years for next to next date to go by :-).

(2) Husband immediately then proceeds to challenge the allegation para of wife by filling immediately a IA in court to constiute a medical commission to find out about diagnosis / treatment options then draw an inference.

People here who wants to know about "reactive depression allegation" should know that a person having this type of depression may even commit suicide !. Now court has washed hands in instance case probably (not to constiute medical commission) so the onus of any unexpected suicide meantime will fall on whom (I mean will the State take responsibility or husband had it)? Well husband has done all he can to bring to record the correct facts by above (1) and (2) actions.

Experts here advise what SC will do in such allegations cases?

Expert also point out to me the citation referenc eof the main topic here please to study the SC directions and corelate with above suite in some way.

Thank you

Regards

rgds

 

1 Like

M. PIRAVI PERUMAL (Advocate & Consumer Rights)     11 March 2009

I agree with Mr. Palnitkar but at the same time I would like to state that no medical practitioner is ready and willing to give opinion against his fraternity member.  I had faced such problems on numerous occasions while conducting medical negligence cases, even though off the record the said medical practitionder admits the gross negligence on the part of the doctor who provided treatment but refuses to come out and depose or give the same in writing.  If  he/she is compelled to appear they never repeat what they said off the record.  God alone can save the patients.

Swami Sadashiva Brahmendra Sar (Nil)     12 March 2009

supreme court's decision is not balanced one. better we wait for a decision of larger bench on this issue.

Rajneesh Malhotra (Advocate)     25 March 2009

There are also others flaws>>


1. How will a consumer forum form a medical board? It does not have any power to direct a group of doctors.


2. Suppose it asks/requests/directs any local government hospital, how will it fix a time frame...the doctors may be very busy and may not have time for this.


3. Its would be like a board taking a decision and then the FORA sitting in appeal.


I think a better solution would be that The Hon'ble Supreme Court should direct that the Fora should take the help of a doctor by associating the doctor as a member of the bench for that particular case. Maybe an amendment can be done in the Act in this regard.

Hemant Agarwal (ha21@rediffmail.com Mumbai : 9820174108)     15 May 2009

Dear All,
The following appeared in  "Times of India", Mumbai Edition on May 15, 2009, page no. 01.
 
This is in context to the main initial topic post, since it is connected to "MEDICAL NEGLIGENCE"
 
Keep Smiling ... HemantAgarwal
09820174108
 
 
SC awards techie Rs 1cr for botched op

 
New Delhi: In the highest compensation ordered by an Indian court in a medical negligence case, the Supreme Court on Thursday awarded Rs 1 crore in damages to a techie who found himself paralyzed waist down after a surgeon damaged his spinal cord during an operation to remove a tumour in the chest.
   The victim, Prashant S Dhananka, who spiritedly argued his own case from the wheelchair to which he has been confined since 1990, had sought a compensation of Rs 7 crore. The court, however, settled for an almost seven-fold increase in the Rs 15 lakh amount awarded by the AP high court.
   Although it is a pittance compared to the £5 million (over Rs 37 crore) awarded to British TV actress Leslie Ash in a similar case last year, the SC ruling could be a trendsetter for judicial reevaluation of compensation for victims of medical negligence.

Doc: Not a case of negligence


New Delhi: Prashant S Dhananka, the techie who was paralyzed waist down during a surgery and awarded Rs 1 crore in damages on Thursday, is now a senior manager with Infosys, earning Rs 1.5 lakh a month and residing in Bangalore. He gave vivid details of the gross negligence he suffered at Nizam’s Institute of Medical Sciences (NIMS), Hyderabad, and demonstrated the inadequacy of the compensation awarded by the high court. NIMS, a semi-government set-up, is rated as one of the premier hospitals in the country.
   While increasing the compensation to Rs 1 crore, the bench showed its disgust at the blatant attempts by NIMS to wriggle out of its responsibility for the victim’s condition and acknowledged the need to provide for the huge medical expenses that Dhananka has had to incur every month since 1990. “Fighting the case was a great struggle. We were totally disappointed with the compensation. The hospital made him totally dependent. He cannot even turn on his own,’’ Prashant’s mother Indira Sheshadri, 64, told TOI, from Bangalore.
   Dr P V Satyanarayana, who had performed the operation, was then a professor of cardiac surgery at NIMS. He took voluntary retirement in 1996 and now works for a corporate hospital in Vizag. “The complication occurred in spite of taking all the precautions. It is not a case of medical negligence. Similar cases are mentioned in medical literature,’’ he said.
   Dhananka’s experience is similar to the case of former national table tennis player V Chandrasekhar, who fought a legal battle against Apollo Hospital, Chennai, for over a decade before being awarded Rs 19 lakh by the Supreme Court in February 1995—the highest compensation in a medical negligence case in India before the Dhananka verdict. Chandrasekhar also had been left partially paralyzed due to medical negligence. For Dhananka, the problem began on September 19, 1990, when he got himself examined at NIMS for recurring fever. The hospital diagnosed a benign tumour in the chest. He underwent thoracotomy for the removal of the tumour but due to negligence during the operation, his spinal cord was damaged. He developed paralysis in the lower part of his body and has been confined to a wheelchair since. The SC concurred with plea put forth by Dhananka that a bright future had been cut short due to the mistake of doctors.
   While it took Dhananka 19 years to get justice, British actress Leslie Ash got her compensation in just four years. She had brought the claim after contracting an MSSA (methicillin-sensitive staphylococcus aureus) infection while being treated by the Chelsea and Westminster Hospital in London for two cracked ribs in April 2004. She suffered severe mobility problems and even after four years walks with a stick.

Swami Sadashiva Brahmendra Sar (Nil)     15 May 2009

good news !

M. PIRAVI PERUMAL (Advocate & Consumer Rights)     17 May 2009

A good news.  But the aggrieved ought to have been granted more compensation.

Adinath@Avinash Patil (advocate)     02 November 2009

Dear Hemant,

Good news can you   give letest up dates of regarding experts opinin.

Hemant Agarwal (ha21@rediffmail.com Mumbai : 9820174108)     03 November 2009

Adv.A.Patil,

APOLOGIES.  BUT, Nothing, YET, from my side.  Maybe other members have some inputs on the issue.

Like the telecom regulatory judgement of SC, which says consumer forum not place to adjudicate on telecom matters,   maybe  the medical council too might be having or contemplating on having an  "ombudsman"  or a  special seperate  "adjudicator or authority" for the same.

Even God does not know how the Indian Law & Judiciary will work.

Keep Smiling .... Hemant Agarwal

 

 

Nitish Banka (lawyer)     08 April 2018

Posted by: Nitish Banka  Categories: Uncategorized 
 

 

Medical Negligence How to prove

Here are some Medical Negligence consumer forums Judgements

V. Krishnakumar vs State Of Tamil Nadu &Ors.

One thing is clear about the disease, and this was not contested by the learned counsel for the respondents, that the disease occurs in infants who are prematurely born and who have been administered oxygen and blood transfusion upon birth and further, that if detected early enough, it can be prevented. It is said that prematurity is one of the most common causes of blindness and is caused by an initial constriction and then rapid growth of blood vessels in the retina. When the blood vessels leak, they cause scarring. These scars can later shrink and pull on the retina, sometimes detaching it. The disease advances in severity through five stages – 1, 2, 3, 4 and 5 (5 being terminal stage). Medical literature suggests that stage 3 can be treated by Laser or Cryotherapy treatment in order to eliminate the abnormal vessels. Even in stage 4, in some cases, the central retina or macula remains intact thereby keeping intact the central vision. When the disease is allowed to progress to stage 5, there is a total detachment and the retina becomes funnel shaped leading to blindness. There is ample medical literature on the subject. It is, however, not necessary to refer all of it. Some material relevant to the need for check up for ROP for an infant is:

“All infants with a birth weight less than 1500 gms or gestational age less than 32 weeks are required to be screened for ROP.”[1] Applying either parameter, whether weight or gestational age, the child ought to have been screened. As stated earlier, the child was 1250 gms at birth and born after 29 weeks of pregnancy, thus making her a high risk candidate for ROP

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In present case ROP related treatment not performed.

In the circumstances, we consider it appropriate to apportion the liability of Rs. 1,38,00,000/- among the respondents, as follows: Rs. 1,30,00,000/- shall be paid by Respondent Nos. 1 and 2 jointly and severally i.e. The State of Tamil Nadu and the Director, Government Hospital for Women & Children, Egmore, Chennai; and Rs. 8,00,000/- shall be paid by Respondent Nos. 3 and 4 equally i.e. Rs. 4,00,000/- by Dr. S. Gopaul, Neo- pediatrician, Government Hospital for Women & Children, Egmore, Chennai and Rs. 4,00,000/- by respondent no. 4 i.e. Dr. Duraisamy, Neo Natology Unit, Government Hospital for Women & Children, Egmore, Chennai.

The above mentioned amount of Rs. 1,38,00,000/- shall be paid by Respondent Nos. 1 to 4 within three months from the date of this Judgment otherwise the said sum would attract a penal interest at the rate of 18% p.a.

Image result for medical negligence

 

No medical expert consulted

Sikha Nayek vs. Dr. Manabesh Pramanik, where Their Lordships have held that ‘a case of medical negligence has to be proved by proper medical expert’s evidence; it cannot be based on mere statements of a patient or patient party.’   In the judgment passed by the Hon’ble National Commission, reported in 2004 CTJ, 175, (CP) (NCDRC), where Their Lordships have held that ‘As per settled law on medical negligence, it has to be alleged as to which action of the doctor was not as per accepted medical practice and what was done should not have been done or what was not done should have been done, this has to be supported by expert evidence or available medical literature on the subject. In the instant case the Complainant has failed to prove by adducing cogent evidence that the OP has failed to provide treatment as per accepted medical practice and what was done by him should not have been done. Moreover the Complainant has failed to prove the negligent treatment of the OP by adducing the expert evidence or by way of production of the standard medical text.

Upasana Hospital and Another vs. S. Farook, reported in II (2007) CPJ 235 (NC), where the said Commission have held that without any expert evidence produced by the Complainant for alleged negligence, onus lies on the Complainant to prove the same and in this judgment the Hon’ble National Commission have relied upon the judgment passed by the Hon’ble Supreme Court in the case of Jacob Mathew vs. State of Punjub and Another, reported in 2005 CTJ 1085 (Supreme Court), (CP), where Their Lordships have held that ‘a medical practitioner is not to be held liable simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference to another’.

“Bolam v Friern Hospital Management Committee”, (1957) 2 ALL ELR 118, which was accepted by the Hon’ble Supreme Court as laying down correct tests in cases of medical negligence, in which it was observed that negligence in law means failure to do some act which a reasonable man in the circumstances would do, or the doing of some act which a  reasonable man in the circumstances would not do.

The Hon’ble Supreme Court in the judgment

Kusum Sharma and others versus Batra Hospital & Medical Research Centre & Others”, 2010(3) SCC 480 issued the guidelines that the following principles must be kept in mind while deciding whether the medical professional is guilty of medical negligence:-

“I. Negligence is the breach of a duty exercised by omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. II. 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. III. The medical professional is expected to bring a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires.

IV. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.

V. In the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor.

VI. The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Just because a professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his/her suffering which did not yield the desired result may not amount to negligence.

VII. Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession.

 It would not be conducive to the efficiency of the medical profession if no Doctor could administer medicine without a halter round his neck.

IX. It is our bounden duty and obligation of the civil society to ensure that the medical professionals are not unnecessary harassed or humiliated so that they can perform their professional duties without fear and apprehension.

X. The medical practitioners at times also have to be saved from such a class of complainants who use criminal process as a tool for pressurizing the medical professionals/hospitals particularly private hospitals or clinics for extracting uncalled for compensation. Such malicious proceedings deserve to be discarded against the medical practitioners.

XI. The medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients. The interest and welfare of the patients have to be paramount for the medical professional

By-Adv. Nitish Banka

9891549997

nitish@lexspeak.in


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