LAWS LAID DOWN ON MEDICAL NEGLIGENCE:

                                                PART-A

 

Indian medical association V V.Shantha SC.1995

 

 1.      Though Indian Medical Council Act has to provisions to control the medical practitioners and take disiplanary action against erring doctors,consumer courts are additional remedy to the consumer under consumer protection act to get compensated.

2.      Though medical PROFESSION is different from other OCCUPATIONS ,but commercialization has already taken place when services are given by payment though it is still a noble profession based on faith and trust.

3.      Theory of res ipsa loquitur [ a thing speaks of itself]- in case any instrument left in the body ,a wrong part removed ,there is no need of further investigation to prove negligence.

4.       If five methods available for treatment,one chosen,not negligent

5.      Doctor not guarantor

6.      Error of judgement different from wrong diagnosis

7.      Three steps necessary to be observed by the medical practitioners

·         To decide whether he has to take up the case or not

·         If taken up the case, he is to decide what treatment is to be given

·         Whether the treatment given as per the diagnosis made.

 

   8   Fee/consideration ,three categories :

 

Poonam Verma V  Ashwin Patel SC 1996

9        Prescription or giving medicine without knowledge i.e.Homiopathic   doctor prescribing allopathic medicine amounts to medical negligence even if it does not harm the patience

Spring Meadows V Harjot Ahluwalia SC 1998

10    cases where nurse is not trained ,case left to junior doctors without explaining case history,wrong medicine or wrong injection given causing damage to the patient ,doctors/hospital/nursing home negligent for medical treatment.

 

 Achuterao Haribhau Khodwa V State of Maharashtra SC 1996

11    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 proove to be very effective

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

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

 

J.J Merchant and others V Shrinath Chaturvedi SC 2002

14    Consumer courts are competent to adjudicate the matters pertaining to   medical negligence  as the President appointed in the forum is from judicial background who has dealt many complicated questions of law Further evidence and cross examination etc can also be taken in the form of affidavit in summery procedure. In a special cases expert opinion can also be obtained .Only because subject matter is technical in nature ,cases of medical negligence cannot be shifted to civil courts .

 

Jacob Methew V State of Punjab &others 1995 CTJ 1085 SC{CP}

 15.Act of negligence to be viewed as criminal negligence inviting criminal prosecution would have to be of a gross negligence and must fulfil 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 .

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

 

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

17. “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

 

18. “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 diposes ”

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

19. “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’’

20. “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” 

21. “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 thre judges bench order wherein it was held that there ma cases which do not raise much complicted question and deficiency of service may be due to obvious faults which can be easily established such as removal of wrong limb,performance ofoperation onwrong patient ,giving injection or drug to elergic patient without test,leaving swabs or other sugicle item in th body during operation ”

22. “Before forming an opinion that expert evidence is necessary,the foraunder 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 IFdecision 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”

                                               

                                                PART-B

 

JURISDICTION OF THE FORUM /COMMISSION TO ENTERTAIN A COMPLAINT WHEN THERE IS AN ERROR OF  NON-JOINDER OF THE PARTY

 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

Whether non-impleading the treating doctor as party could result in dismissal of the original petition for non-joinder of necessary party.

As per the provisions of Section 22 of the Consumer Protection Act, 1986 (hereinafter referred to as 'the Act') the Commission has to regulate its business.

 Section 22 lays down the power of and procedure applicable to the National Commission

" 22. Power of and procedure applicable to the National Commission.-

The National Commission shall, in the disposal of any complaints or any proceedings before it, have-

(a) the power of a civil court as specified in sub- sections (4), (5) and (6) of section 13;

(b) the power to issue an order to the opposite party directing him to do any one or more of the things referred to in clauses (a) to (i) of sub- section (1) of section 14,

and follow such procedure as may be prescribed by the Central Government.".

 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 there also even 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 A.K.Garg have not been impleaded as opposite parties it can not result in dismissal of the original petition as a whole when a patient is admitted to the highly commercial hospital like the present institute, a thorough check up of the patient is done by the hospital authorities, it is the Institute which selects after the examination of the patient that he suffers from what malady and who is the best doctor who can attend, except when the patient or the family members desire to be treated by a particular doctor or the surgeon as the case may be.Therefore, the expression used in Rule 14 (1) (b), " so far as they can be ascertained", makes it clear that the framers of the Rules realized that it will be very difficult specially in the case of medical profession to pinpoint that who is responsible for not providing proper and efficient service which gives rise to the cause for filing a complaint

Since the burden is on the hospital, they can discharge the same by producing that doctor who treated the patient in defence 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 impleading a particular doctor will not absolve the hospital of their responsibilities.

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The court pointed out at that  “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.

STATE OF HARYANA & ORS. Y. SMT. SANTRA, JT 2000 (5) SC 34,

The Supreme Court upheld the decree awarding damages for medical negligence on account of

the lady having given birth to an unwanted child on account of failure of sterilization operation. In this case, it was found on facts that the doctor had operated only the right fallopian tube and had left the left fallopian tube untouched.  The patient was informed that the operation was successful and was assured that she would not conceive a child in future. A case of medical negligence was found

and a decree for compensation in tort was held justified

 

 

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