1. NO cure is not Negligence – No guarantee can be assured for cure by the doctor.
M. SARALA, Chennai V/s. SUNDARAM MEDICAL FOUNDATION & anr.-(NCDRC)(New Delhi)
The complainant got his right hand index finger cut while doing some house hold chores on washing machine. She rushed to the OP hospital with bleeding cut finger wrapped in a plastic Bag. Despite of emergency case it was alleged that the plastic surgeon arrived after 6 hours and thenafter she was taken for surgery with assurance of full recovery. However delay in treatment cost her and the cut finger could not be joined resulting in amputation which lead her 13% disability. Therefore a consumer complaint was filed seeking relief by way of compensation of Rs. 33, 48,000/-. However, the case goes against and order was passed in favor of OP in district as well as State commission. Hence she filed an appeal to National Commission.
The learned court relied upon the statement and contention of OP that everything was done with due care and caution and as per std. protocol between six to twenty four hours; which is within permissible limit for re-implantation and amputated part was also well preserved. Considered view that the right index finger was completely amputated, separated, due to crush avulsion injury. The OP submitted notes which revealed that the patient left hospital, without informing doctor, nurse or any of the hospital personnel and had to amupte her Finger due to Gangrene in some Govt. Hospital.The commission relied on the findings of Apex Court in the case of Martin F. D’Souza Vs. Mohd. Ishfaq, AIR 2009 SC 2049, wherein the Apex Court held as under:
"A medical practitioner is not liable to be held negligent 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. He would be liable only where his conduct feel below that of the standards of a reasonably competent practitioner in his field".
The court. further held that , "No action may be maintained against any health care provider, upon any guarantee, warranty or assurance as to the result of any medical, surgical or diagnostic procedure or treatment, unless the guarantee, warranty or assurance, or some note or memorandum thereof, shall be in writing, and signed by the provider or by some other person, authorized to act for or on behalf of such provider.
This judgment throws light on the fact that any professional much less a Doctor will guarantee the 100% result in favour of the client/patient. What he/she can and must do is all out efforts with the knowledge and experience which one has. No Star & Moon promises.
2. Negligence in post operative care saddled Hospital with Rs. 40 Lakhs and Doctor with Rs. 10 Lakhs.
Sheela Hirba Naik Gaunekar v. Apollo Hospitals Ltd- SC
Death of a patient in hospital due to medical negligence of Doctor of Hospital - Compensation of Rs. 50 lakhs awarded - Hospital to pay Rs. 40 lakhs and negligent Doctor to pay Rs. 10 lakhs with 9% interest per annum.
Complainant is wife of deceased patient, who underwent angioplasty treatment in the alleged hospital, Chennai and same was performed but thenafter shortly the patient died due heart attack.
The complainant preferred a claim petition before the Commission alleging that the death of her husband was on account of the medical negligence on the part of the hospital and its doctors and due to deficiency of service. Thus, she is entitled to compensation for a sum of Rs. 70 lakhs.
The Commission examined the evidence and relevant records and came to the conclusion that there was negligence on the part of the respondent-hospital in post operative treatment. Rs. 2 lakhs were awarded as compensation.
Both the parties approached to Apex court, alleged hospital for appeal against the compensation awarded and complainant for the quantum of compensation.
The learned court after perusing the evidence and the previous judgments upheld the lower forums judgments and observed:
We are required to examine as to whether the amount of compensation awarded by the Commission was just and reasonable.
While calculating the award the income of deceased was considered, According to the Income Tax return, the annual income of the deceased was Rs. 5 lakhs per annum. Deducting one-third amount of that towards the personal expenditure of the deceased comes to L 3, 33,000/- (approximately).
After multiplier of 9, the annual loss of dependency comes to Rs. 29,70,000/- Having regard to the fact that the incident in the instant case occurred in the year 1996 and the litigation has been going on for nearly twenty years, it would serve the ends of justice to award L 40 lakhs as compensation.`
Applying the principle laid down in the case Balram Prasad v. Kunal Saha and Others, 2013(4) R.C.R. (Civil) 946 it was held that negligent Doctor will be saddled Rs.10 lakhs. Hence the award was enhanced to Rs.50 lakhs plus 9% p.a. interest, in totality.
3. A Surrogate Mother permitted to Terminate pregnancy @ 24 week by Hon. Bombay High Court. An unique judgment indeed.
Kiran Kailas Gavhande & anr. V/s. Union of India & ors.
The petitioner entered into an agreement with the couple (intending parents). During routine checkup, it was found that the fetus had serious defects in the heart and after consulting the Pediatric Cardiologist, it was decided to abort the fetus. However by that time it was already 24 weeks fetus and as per current law it is not possible to terminate pregnancy @ 24 weeks. The petitioner along with the intending parents as petitioner approach Hon. Bombay High Court for the urgent reliefs. Hon. Bombay High Court then constituted a committee of B.J. Medical College and Sasson General Hospital Pune.
The Committee after examining the pregnant woman unequivocally opined that there are multiple cardiac abnormalities in the baby and if the baby is born it will require multiple surgeries with high morbidity. The committee has therefore opined that the pregnancymay be terminated with the explained risk of termination of 24 weeks and that will have to be done by C-Section.
Considering it as a unique case the learned court accepted the expert report baby born will be a traumatic experience for the baby as well as for the parents and directed the Surrogate mother to undergo MTP. Indeed a good decision.
4. An eyeopener case for doctors - Failure to rule out ectopic pregnancy costed 1.50 lakhs to Doctors for causing breach of duty to care.
Dr. Kusum Sabharwal V/s. Sangeeta Agarwal. R.P. No.2058/2013.
The Complainant (respondent) being pregnant approached the Appellant doctor for termination of her pregnancy. Accordingly, after written consent and all legal and medical formalities under MTP Act, Medical Termination of Pregnancy (MTP) was performed by the doctor same day. But after 15 days the complainant came with the complaint of abdomen pain henceforth USG was performed. As the USG report was also normal and hence she was treated symptomatically with directed to consult in case of any issue. But the Complainant then approached another Gynecologist who again referred to her same Sinologist, but in vain. After few days the patient fell in the house and in critical condition she was taken Hospital. During investigation, she was diagnosed as a case of "Ruptured Ectopic Pregnancy Right Side". UPT was positive. After emergency operation blood clots 200ml were removed. IT was alleged that the MTP was not performed properly and failed to diagnose the root cause of pain hence a case of Medical Negligence was filed claiming Rs.20 lakhs compensation.
Appellant vehemently denied the allegations and stated that the MTP was conducted legally. There were no symptoms of Ectopic Pregnancy and the Gynecologist also did not confirm the same. But the District court awarded order against the doctor and same was confirmed by the State commission directing the treating doctor and hospital to pay 1.50 lacs jointly or severally. Hence revision petition was filed with National Commission.
The learned court relied on expert opinion sought by the complainant. The expert report clearly mentioned that both the Doctors even after revealing bulky uterus with tenderness in right adexa., diagnosis of ectopic pregnancy was not entertained and she was treated with antibiotics only.
The Doctors failed to send the D&C material to confirm whether it was the product of (pregnancy) conception. It was a casual approach. As per Medical Literature, it is a bounden duty of Doctors to send the surgical specimen for histopatholgical examination for confirmation of the diagnosis and further management. The Gynecologists as well as Sonologist committed breach of duty of care..
5. Carless Lazer eye Surgery – Hospital was slapped with 50 lakhs compensation
MS. PRASANNA LAKSHMI V/s. MAXIVISION LASER CENTER PVT. LTD.
Aggrieved by the order passed by the State Commission, Hyderabad both the Complainant and Opposite Party
have preferred First Appeal and approached to National Commission.
The Complainant/ Patient was suffering from short sight problems, hence approached to OP hospital where surgery was suggested and assured that Complainant will able to see well without using spectacles. It was alleged that the surgery was not performed by the senior doctor as told earlier but instead was performed by junior doctor who did not mention the presence of microstraie.
After the Surgery, Complainant had experienced loss of vision, both in clarity and quality and further suffered severe glare, contra sensitivity, hazy vision and light distortion. Though the Senior Doctor tried different lenses but there was no improvement.
The complainant went for second opinion where upon examination wrinkles in both eyes were observed and another surgery was advised as due to wrinkles in the corneal flaps there was loss in her vision and the vision acuity did not improve and the corrective surgery ought to have been performed immediately. Hence consumer compliant claiming compensation for Rs. 1 crore was filed for the damages caused and now she has to live blurred and impaired vision.
Contention of the parties:
The hospital averted that all surgeries involved risk and stated that the Dr Operated is not Junior Doctor but having 38 years of experience and further that at time of examination no microstriae was observed by and the Complainant was requested to come after 3 months but she did not turn up. The expert opinion also held that there was no medical negligence.
The learned court held that the post operative complications which occurred were neither explained to the Patient nor were the requisite steps taken to educate the Patient about the prognosis, to enable her to exercise her choice of opting for any line of treatment which perhaps would rectify the situation. The Treating Doctor not only kept her in the dark about the treatment for microstriae and the prognosis thereof, but also did not take reasonable care to avoid decentered ablation.
The Commission confirmed the order of Stat Commission and observed that there is no infirmity in the order as the deposition of the Treating Doctor read together with the prescriptions, the continuous post treatment undergone by the Complainant in an attempt to correct the complication, together with the Medical Report of LV Prasad Eye Institute which specifically mentions that her visual acuity has fallen to 20/80 in the right eye and 20/64 in the left eye, prove that there was negligence on behalf of the Lasik Centre. The compensation was enhanced to 50 Lakhs.
6. Improper insertion of needle – resulting in amputation of hand – court awarded compensation and held negligence.
Smt. Zarina v. State of M.P – MP, H.C
The appellant admitted at Government District Hospital, Ujjain for a family planning operation and while the operation was going on, she was administered saline/glucose. But there was a swelling at the place, where the needle was inserted and on account of heavy swelling, she was shifted to another Government Hospital at Indore. In spite of the treatment given to her, she developed gangrene and her hand was amputated above the elbow joint. Hence complaint was filed for negligence resulting in permanent disability. The trial court decided the case against the appellant /plaintiff. Hence appeal was filed.
The learned court allowed the appeal and held that in the present case, the plaintiff who is a lady was earning her livelihood by working as a Labourer, she was involved in the job of stitching and now one entire limb has gone above the elbow and, therefore, this Court is of the considered opinion that the compensation claimed was too meager and the trial Court as there was sufficient evidence on record, has certainly erred in law and facts in dismissing her plaint. Keeping in view the totality of facts and circumstances of the case, especially in light of the percentage of the disability (amputation of one limb above elbow joint) and in the considered opinion of this Court, the plaintiff has prayed for a very meager amount of compensation to the tune of Rs. 1,85,000/-, and therefore, the prayer made by the plaintiff is hereby allowed. The plaintiff shall be entitled for compensation to the tune of Rs. 1,85,000/- along with interest @ 9% per annum right from the date on which the suit was filed.
7. Deficiency in services and putting a brain dead patient on ventilator cost hospital 5 lakhs
Shashikant Sharma & anr. V/s.Dr. Manohar Lal Sindhwani and Batra Hospital & Medical Research
Centre, New Delhi & ors.
The complaint being the parents of deceased patient child approached to the OP as the child was diagnosed with case of jaundice alongwith enteric fever. Seeing the serious condition of the patient had to be shifted on Ventilator. But it was alleged that no consent was taken for putting the child on ventilator. The Tube of the ventilator was wrongly inserted into the food pipe and the child was not properly attended by the Sr. Doctors. The cholroquin was wrongly administered as it could only be given in extreme circumstances after definitive diagnosis of malaria. No CT scan was conducted before putting the child on ventilator. The Child was declared as brain dead by the OP. The patient who was declared dead. Hence complaint for claiming 75 lakhs as compensation.
Contention of OP:
The OP is Vehemently Oppose the allegations, and stated that the complainant took patient home without any investigation which worsen the condition of the patient, the patient was shifted to ventilator, patient was not responding to drug treatment of stage-I hepatic encephalopathy, father was advised to give consent for electively hyperventilate and paralyze by incubating so that raised intra-cranial tension could be brought down and the treatment was given accordingly.
The Commission agreed to the contentions of the Complainant that the opponents were not at all justified in sustaining artificially the patient on ventilator from 26.04.2006 till 28.05.2006 when the patient was declared brain dead. The Doctors never informed the relatives of the patient that the patient was ‘brain dead’ on 26.04.2006. They were never explained the role of ventilator in the case of a patient who is ‘brain dead’, when the patient was found ‘brain dead’ by several doctors including the neurologists on several occasions. Relatives of the patient did not consent to putting the patient on ventilator. It was on the intervention of a senior doctor when the patient was put on ventilator. Even at this juncture, no ‘consent’ or ‘informed consent’ was taken in writing from the relatives.
The Commission held the Opponents are deficient in service and further directed them to pay a sum of Rs.5 lakhs plus interest @7% interest p.a. till its actual realisation to the Complainant.
8. Absence of pediatrician at the time of delivery – Act comes under omission – Doctor held liable.Dr. Shakuntala Banale v. Anita – National Commission
The patient party was under follow up of petitioner doctor during pregnancy for antenatal treatment
(ANC) and got admitted for the same. It was alleged that during labor pain the petitioner doctor did
not attended the patient rather was attended by two ayurvedic doctor which lead to painful delivery
and the baby suffered foetal distress resulting in carelessness of appellant doctor. It was further
alleged that the baby did not cried immediately hence was shifted to another hospital and after much
treatment it was found that baby suffer from birth asphyxia and septicemia. Hence consumer
complaint. The district court partly allowed the complaint and awarded compensation of Rs. 3 lakhs.
Two separate appeals were filed by both the parties against the order of DCF.
The state commission allowed the appeal of patient party and enhanced the compensation to Rs. 10 lakhs, whereas the appeal of Doctor was dismissed.
Defense of Doctor: Doctor filed a revision petition before National commission , and vehemently argued that the delivery of patient was conducted by the petitioner doctor. It was not conducted by any ayurvedic doctor or any other doctor. The patient was the wife of one doctor; therefore, patient husband was present throughout delivery, as an extra precaution. As, the child did not cry immediately after birth, hence was shifted to NICU care. Therefore, there was no negligence. Further the doctor is highly qualified OB/GYN practicing for more than 20 years having well equipped hospital. There was no single complaint against the him. During delivery the he monitored the fetal heart rate by fetal Doppler in the labor room, which was normal. Hence, there was no fetal distress. It was normal delivery performed with care and caution.
The question before court was whether the child suffered birth asphyxia?
The court examines the CT scan report which revealed (a) Corpus callosal hypogenesis, (b) encephalomalacic areas involving the bilateral parietal-occipital region. Similar findings were confirmed by MRI study subsequently by a Neurologist. MRI report discloses that; "Encephalomalacic areas involving the bilateral parieto occipital region. Corpus Collosal Hypogenesis. No evidence of intracranial space occupying lesion." The medical literature on birth asphyxia, also explains, the cause of corpus callosal hypogenesis and encephalomalasia occur due to birth asphyxia.
The petitioner doctor did not produce medical records pertaining to delivery and condition of child after delivery.
Hence the court held that At the time of delivery of patient no pediatrician was present. The paediatrician or neonatologist should be made available during delivery to take care of new born. It was an adequate attempt of resuscitation made, in absence of a paediatrician/neonatologist - Thus, it was the deficiency in service - An act of omission, for which doctor was liable.
9. Collection of fluid is quite natural in normal deliveries and such complications can be treated by conservative management without any operation.Dr. Indira v. Muchapothula Nirmala – National Commission
This revision petition has been filed by the petitioners(doctor) against the order dated 19.1.2012
passed by the A.P. State Consumer Disputes Redressal Commission, Hyderabad by which, while
allowing appeal, order of District Forum dismissing complaint was set aside and compensation of Rs.
3,00,000/- was awarded.
The complainant/respondent (patient) got admitted in OP / Petitioner no. 3 hospital on 26.-8.2008. Where the OP / Petitioner no.1 and 2 conducted caesarean operation and complainant gave birth to male child on the same day, but soon after the operation, she developed severe pain in her abdomen because OPs had not taken proper care in conducting caesarean operation.
It was further alleged that due to severe pain in her abdomen due to post operational complications, patient was again admitted in the same hospital on 11.9.2008. Where OP Nos.1 and 2 expressed their inability for treatment and referred complainant to higher center who opined that loculated fluid was collected in abdomen. Hence, Complainant filed complaint before District Forum demanding compensation of Rs. 13, 00,000.
Defense of Doctor:
The Ops vehemently denied all the allegations and submitted that only OP no.1 conducted the surgery and the patient did not complained any pain after surgery, nor the patient was referred to higher center. It was further submitted that after caesarean operation, complainant was taking normal food and was discharged in normal condition. The patient approached OP on 11.9.2008 and it was noticed that there was distension in her stomach and there was adhesions which was one of the post operation effects which occurs in one person out of one hundred persons due to their personality and ability. It was further submitted that collection of fluid is quite natural in normal deliveries without operation also, and such complications can be treated by conservative management without any operation, but complainant and her attendants insisted for discharge from the hospital, as they decided to go to other hospital.
The DCF dismissed the complaint but State commission allowed the same.
The learned National Commission set aside the order of state commission and held the state commission has committed error in allowing appeal and awarding compensation even without any expert evidence.
It is clear from evidence that complainant had herself initiated to shift to other hospital and she was discharged from OP hospital at her own request. There is no force in the contention of respondent/complainant that treatment by conservative management without operation was possible. Petition allowed.
10. Operating Surgeon Can't Be Held Guilty Of Negligence Just Because Patient Passed Away After Reaching HomeDr.Manish Bansal vs State Of Haryana. – HC, Punjab & Haryana
Dr. Manish Bansal filed this petition u/s 482 cr.p.c in 2014, for quashing an FIR against filed against him under Section 304A (causing death by negligence) of the Indian Penal Code. He had contended that he should be discharged for the lack of sanction to prosecute him under Section 197(8) of the Code of Criminal Procedure.
The complainant had alleged that his daughter-in-law had passed away due to the petitioner's negligence. The deceased had undergone a sterilization operation conducted by the petitioner. On reaching home from the hospital in a government vehicle, she complained of acute pain. She was then being brought back to the hospital but passed away on the way. The court, however, noted that the postmortem report eliminated any negligence on the part of the operating surgeon. The cause of death was found to be shock and haemorrhage.
The learned court held that in this case, the petitioner was a government doctor. He was performing official duties and was conducting sterilization operations. Several operations were conducted. Therefore, the sanction of the petitioner was required from the competent authority to prosecute the petitioner under Section 197 Cr.P.C., since alleged act was done by the petitioner in the discharge of his official duties. The said sanction was required before the Court could take the cognizance."
The court further held that "Doctor was duly qualified being M.B.B.S. M.S. (General Surgery). It is not alleged that he was drunkard or he used the tools which were not meant for surgery. He performed surgery in several cases For offence under Section 304A IPC, it must be proved that the Act was rash and negligent. The doctor performed surgery and except the fact that subsequently, the patient on reaching home, complained of acute pain, will not be sufficient to conclude that the petitioner doctor was negligent in performing surgery.
The doctor's petition was, therefore allowed, and the FIR along with the consequential proceedings was quashed.
11. Partially removal of gall bladder rather than endangering the life of patient – not negligence, doctor acted in his best professional judgment, based on the situation which he saw while performing the operationB.H. Parmar v. Dodiya Manharbhai – NCDRC
The complaint (patient party herein respondent) suffering from suffering from stomach disease was referred to petitioner (doctor) for gall bladder surgery. The alleged doctor stated that surgery will be conducted by laser technique and it would take about an hour. It has been alleged that no pre operative test were conducted by the doctor. The surgery was performed on 19.03.1998 but the patient keep on suffering from pain, henceforth sonography was conducted on 17.04.1998 which revealed that the gall bladder and surgery were still present and the surgery was failure and patient underwent surgery again from another surgeon which was uneventful. Hence a complaint to DCF, claiming compensation of Rs. 5 lakhs and the same was allowed and held due to the "carelessness" on the part of the Petitioner/Doctor that the operation of the Respondent was a failure. It directed the doctor to pay Rs. 2,50,000/- with 12% interest..
Aggrieved by this order, Petitioner filed an appeal before the State Commission which upheld the order of the District Forum on the grounds that the Petitioner had failed to substantiate his contention that there was no negligence on his part and that the incomplete surgery was necessitated because removal of the entire stones/gall bladder would have endangered the life of the Respondent. The State Commission specifically observed that the Petitioner did not produce any records with regard to the said operation.
The revision petition has been filed by the doctor who has been aggrieved by the state commission, Gujarat whereby the order was passed in favor of patient party.
Petitioner at the outset stated that there was no medical negligence and while it is a fact that Petitioner could remove only three-fourth of the gall bladder of the Respondent, this was an on the spot decision that he took based on his medical skills and knowledge because removing the entire gall bladder would have seriously endangered the life of the Respondent since it could have damaged the main blood vessel as well as the bile duct. Removing only part of the gall bladder under the circumstances stated above is an acceptable medical practice as is evident from the medical literature which was produced before the Fora below. it was found that in fact the gall bladder was enlarged and very close to the liver because of which the entire gall bladder and stones could not be removed. It is settled law that merely because a particular line of treatment/surgery is not successful, it does not necessarily mean that there was any medical negligence or deficiency in service.
Doctor did possess the medical skills required to conduct this surgery and also it was only after getting the pre- diagnostic test by a registered laboratory that he decided to undertake the surgery. While, it is a fact that the operation was not entirely successful, the reasons for this were clearly recorded in the operation notes. In his best professional judgment, based on the situation which he-saw while performing the operation, Petitioner took a considered decision to only apartially remove the gall bladder rather than endangering the life of the patient which does not per se indicate any incompetence on his part. Therefore, applying the principles of what constitutes medical negligence and in view of the facts stated above, we are not convinced that there was any medical negligence on the part of the Petitioner/doctor. The Fora below erred in not taking into account important documentary evidence filed by the Petitioner which included the detailed notes of the operation and the pre-operative sonography of the abdomen conducted before the first operation while reaching its findings. Petition allowed.
12. A doctor cannot give complete assurance and guarantee to save life of a patient.CHARAN KAMAL CHOPRA v/s . DR. R.K. GUPTA & ANR. – National commission
Mother of complainant was in jiffy was admitted in hospital whereupon examination many pathological test were conducted including ECH, USG, blood tests etc. The patient being age of 78 years was a known case of High BP and diabetes since 15 years. As her blood urea was 152% mg and serum creatinie was 8.2% mg, she was a case of renal failure henceforth hemodialysis was suggested and same was done. But it was alleged that despite the patient was case of kidney Problem, she was not administrated Lasix injection before starting dialysis, but was given during the dialysis which is not a standard treatment as per the protocol. Resulting in death of patient as due to old age she could not sustain the dose and treatment.
The matter was filed with DCF, the learned court allowed the complaint and Awarded a compensation of Rs. 1, 05,000/- in Toto against the OP doctor.
The OP filed an appeal with the state commission where the findings were reverse and appeal of doctor was allowed.
Aggrieved by this complainant went to national commission - the OP vehemently denied the allegation and pleaded that treatment was as per the standard protocol.
The learned court dismissed the revision petition and held the patient was a known case of diabetes and hypertension for the last about 15 years, which is also a cause of renal damage and renal failure. The opposite party doctor had performed his duty as per the standard protocol. Evidently, the death of the patient was not due to negligence or deficiency; it was caused by uremia leading to renal failure. There is nothing to show that the opposite party doctor did not exercise the reasonable care and the requisite diligence. We, thus, find that medical negligence is not established.