Medical negligence not limited to treatment only

 

Supreme Court in its judgment DT. 22.04.2014 in the matter of Ashish Kumar Majumdar v/s Aishi Ram Batra Charitable Hospital Trust & others 11(2014) CPJ 5(SC) explained the theory of Res Ipsa Loquitur and held that duty of the hospital is not limited to diagnosis and treatment but extends to looking after the safety and security of the patient, particularly those who are sick and under medication. In the present case patient was admitted to OP hospital who was suffering from high fever, had gone out of stroll in the middle of night being unable to sleep. He was found lying on the ground and sustained injuries...He had jumped out of the window of his room despite the presence his sister leading to the injuries suffered. Hospital was held liable for not maintaining the necessary vigil in the hospital premises to ensure safety of the patients.

Law lay down by Supreme Court through various judgments

 

Achute Hari Bhau Khodwa V State Of Maharashtra Sc 1996

 

Law lay down

 

Medical Professional to follow three steps carefully before treating the patient –

1.      Take decision carefully whether he should take the case in hands for treatment.

2.      Decide what treatment he has to give to the patient.

3.      Whether he has given the treatment what was chosen by him.

 

 During the operation, Mop left in the body, formation of pus resulting into damage or death amounts to negligence.

 

Poonam Verma V Ashvin Patel Sc 1996

 

Law lay down

 

  Giving medicine without knowledge i.e. homeopathic doctor prescribing allopathic medicine amounts to medical negligence.

 

Harjot Ahluwalia V Springmeadows 1998 Sc

 

Laws lay down

 

1.      Wrong injection by the untrained nurse, leaving the case to junior doctor without explaining the case amounts to negligence on the part of doctor as well as nursing home.

 

2.      Doctors are not negligent if out of five methods established in the   medical science, doctors adopt one method for treatment which does not bring expected results or treatment does not prove to be very effective

3.      It is expected from a doctor to have a reasonable skill and knowledge and reasonable degree of care.

4.      Doctor is not negligent  unless he has done something which he ought not have done  OR  has not done something which he should have done

 

Jacob Mathew V State Of Punjab  Sc 2005

 

Law lay down

 

  Act of negligence to be viewed as criminal negligence inviting criminal prosecution would have to be of a gross negligence and must fulfill two tests:

!)Doctor did not possess the necessary skill required or if possessed the required skill, did not exercise with reasonable competence

!!)The act committed ought to be such that no medical professional in ordinary sense would have committed.

!!!) Test of Medical negligence in criminal case and under consumer protection act are to be judged on different parameters

!V) Every professional including advocates, charted accountants, Doctors etc who provides professional service. by receiving payment is a service provider under Consumer Protection Act

 

V) In appropriate case, expert opinion may be obtained and the matter is left to the discretion of Consumer Forums and Commissions”

  

Martin D’souza V Mohd Ishfaq 2009 SC delivered on 27th Feb 2009

 

 

 “Whenever a complaint is received against a doctor or a hospital by a consumer forum or by criminal court then before issuing a notice to the complainee doctor or hospital, it should be referred to a competent doctor or committee of doctors, specialized in the field to which the medical negligence relates, and only thereafter if there is a prima facie case that a notice be issued to the concerned doctor/hospital.”

 

 Malay Kumar Ganguli&Dr Kunal Saha V Dr Sukumar Mukherjee and others delivered on 7th August 2009

 

 “A court is not bound by the evidence of the expert which may be advisory in nature .The court must derive its own conclusion upon considering the opinion of experts which may be adduced by both the sides ,cautiously and upon taking into consideration the authorities on the point which he deposes ”

 

 V Krishna Rao V Nikhil Super Speciality Hospital &others (8th March 2010) holding

 

 “Expert opinion is needed to be obtained only in appropriate cases of medical negligence cases and the matter may be left to the discretion of the consumer forums especially when the retired judges of Supreme court and High courts are appointed to head the National Commission and State commission’’

 

 “The general directions given in Para 106 in D’Souza case to have an expert evidence in all cases of medical is not consistent with the principle laid down by the larger bench accepted as position that only in appropriate case ,expert opinion may be made and the matter is left to the discretion of consumer forums and commissions”

 

. “If the general directions of Martin D’souza case are to be followed then the doctrine of Res Ipsa Liquatur which is applied in England and in Indian Medical Association V V.P.Shantha & others case would be redundant and shall be contrary to the three judges bench order wherein it was held that there may be  cases which do not raise much complicated question and deficiency of service may be due to obvious faults which can be easily established such as removal of wrong limb, performance of operation on wrong patient ,giving injection or drug to allergic patient without test, leaving swabs or other surgical item in the body during operation ”

 

 “Before forming an opinion that expert evidence is necessary under  the act, must come to a conclusion that the case is complicated enough to require the opinion of an expert or the facts of the case are such that it cannot be resolved by the members of for a without the association of expert opinion If decision is taken to take to obtain expert opinion in all cases and medical negligence is proved on the basis of expert evidence ,the efficacy of remedy provided under this act would be illusory”

 

Smt. Savita Garg vs The Director, National Heart ... on 12 October, 2004Author: A Mathur Bench: B.N.Agrawal, A.K.Mathur CASE NO.:Appeal (civil) 4024 of 2003 DATE OF JUDGMENT: 12/10/2004

 

 An error of  non-joinder of necessary the party cannot result in dismissal of the original

 petition for non-joinder of party.

 

“The National Commission shall, in the disposal of any complaints or any proceedings before it, have  the power of a civil court and can direct the parties to disclose the name and other particulars of treating doctor if not known to the complainant  So far as the law with regard to the non-joinder of necessary party under Code of Civil Procedure, Order 1 Rule 9 and Order 1 Rule 10 of the CPC no suit shall fail because of mis-joinder or non-joinder of parties.Even if after the direction given by the Commission the concerned doctor and the nursing staff who were looking after the deceased have not been impleaded as opposite parties, it cannot result in dismissal of the original petition as a whole.”

Since the burden is on the hospital to prove not guilty, they can discharge the same by producing that doctor who treated the patient in defense to substantiate their allegation that there was no negligence

The hospitals are institutions, people expect better and efficient service, if the hospital fails to discharge their duties through their doctors being employed on job basis or employed on contract basis, it is the hospital which has to justify and by not imp leading a particular doctor will not absolve the hospital of their responsibilities.

 

 

State of Punjab V Shiv Ram and Ors AIR 2005 SC 3280

 

t  “Merely because a woman having undergone a sterilization operation becoming pregnant and delivering a child thereafter, the operating surgeon or his employer cannot be held liable on account of the unwarranted pregnancy or unwanted child”.  

 

The causes of failure may be attributable to the natural functioning of the human body and not necessarily attributable to any failure on the part the surgeon. Authoritative text books on gynaecology and empirical researches which have been carried out recognize the failure rate of 0.3% to 7% depending on the technique chosen out of several recognized and accepted ones.  Failure due to natural causes, no method of sterilization being foolproof or guaranteeing 100% success, would not provide any ground for a claim of compensation.

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