Case BriefsHigh Courts

Karnataka High Court: Alok Aradhe, J. allowed a petition praying for quashing an order whereby the Principal Civil Judge took cognizance of an alleged negligent act against a doctor; on the grounds of violation of the due process of law and action being barred by limitation.

The petitioner, a medical practitioner, on being consulted by the respondent who was a chronic tobacco chewer having difficulty in opening his mouth, administered treatment to the respondent for a period of 13 days. Following which, the respondent allegedly encountered side effects of medicines and developed a puss formation in the back jaw. Three years later, the respondent filed a complaint against the petitioner for offences under Sections 284 and 326 of the Penal Code, 1860. The same was taken cognizance of and the petitioner inter alia sought quashing of proceedings. Hence, this petition.

Issue: Whether cognizance of a complaint about offence constituting medical negligence can be taken without referring to an expert’s opinion?

The petitioner was represented by Bharath Kumar who contested that taking cognizance for offence as alleged was in violation of the prescribed process of law inasmuch as no expert opinion was obtained before doing so. Reliance was placed on Martin F. D’Souza v. Mohd. Ishfaq, (2009) 3 SCC 1. Further, it was contested that limitation for one year was overdue to which the complaint could not have been admitted. else the same would be impermissible in law. The counsel for the respondent, however, did not concur with such claims and supported the passed order.

The Court’s conclusion relied on the two-fold argument presented. It relied on the Martin F D’Souza case and held that taking cognizance of offence against a medical practitioner without referring to an opinion of an expert doctor is impermissible. It was also held that and the complaint filed by the respondent was barred by limitation as it was filed beyond the statutorily prescribed period of one year.

In light of the aforesaid rationale, the Court allowed the petition and quashed the impugned order. [Prabhakar v. K. Sigbathulla, Criminal Petition No. 2678 of 2017, decided on 31-05-2019]

Case BriefsSupreme Court

Supreme Court: In a case of medical negligence where a minor surgery resulted in amputating a woman’s arm, the bench of Abhay Manohar Sapre and Dinesh Maheshwari, JJ Rs. 10 Lakhs towards compensation, over and above the amount awarded by the Himachal Pradesh State Consumer Disputes Redressal Commission and the National Consumer Disputes Redressal Commission. The Court said that such granting of reasonability higher amount of compensation was necessary to serve dual purposes:

  • to provide some succour and support to the appellant against the hardship and disadvantage due to amputation of right arm; and
  • to send the message to the professionals that their responsiveness and diligence has to be equi-balanced for all their consumers and all the human beings deserve to be treated with equal respect and sensitivity.

The Woman brought to the Court’s notice that she continuously suffered excruciating pain during the entire surgical procedure and despite bringing the fact to the knowledge of the medical practitioners during and after the procedure, no measures were taken to redress and reduce the discomfort suffered by her.  Calling it ‘an uncomfortable fact’, the Court said that not attending her immediately and snubbing her with the retort that ‘the people from hilly areas make unnecessary noise’, obviously, added insult to the injury and were least expected of the professionals on public duties.

Stating that the National Commission had been too restrictive in award of compensation, the Court said:

“Ordinarily, the general damages towards pain and suffering as also loss of amenities of life deserve to be considered uniformly for the human beings and the award of compensation cannot go restrictive when the victim is coming from a poor and rural background; rather, in a given case like that of the appellant, such a background of the victim may guide the adjudicatory process towards reasonably higher amount of compensation.”

The National Commission gad quantified the amount of compensation only at Rs. 2,00,000.

[Shoda Devi v. DDU/Ripon Hospital Shimla, 2019 SCC OnLine SC 334, decided on 07.03.2019]

Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission (NCDRC): A Division Bench of S.M. Kantikar and Dinesh Singh, Members, allowed an appeal filed against the order of Delhi State Consumer Disputes Redressal Commission whereby the appellant’s petition was dismissed at the stage of maintainability itself.

The appellant had filed a complaint against the respondents for medical negligence. One of the respondents had prescribed a medicine for appellant’s husband; however, the pharmacist (OP-2) gave the wrong medicine. The appellant’s husband died because of taking the wrong medicine.

The main issue that arose before the Commission was whether the present dispute amounts to a consumer dispute and hence whether it can be adjudicated upon under the provisions of Consumer Protection Act, 1986.

The Commission observed that the State Commission had cited the case of Bright Transport Co. Ltd. v. Sangli Sehkari Bank Ltd., II (2012) CPJ 151 (NC) wherein it was held that complaints which are based on allegations of fraud, forgery, etc. and trial of which would require voluminous evidence and consideration are not to be entertained by the consumer fora. However, in the instant case the appellant had neither alleged fraud nor did she allege forgery on the part of respondents.

The Commission held that it was a case of medical negligence and deficiency in services and it does not require recording of voluminous evidence and consideration, as may make the adjudication of this case unfeasible or prescribed in consumer fora. The allegations of medical negligence and deficiency of services is a complaint within the meaning of Section 2(1)(c) of the 1986 Act and would convert into a “consumer dispute” within the meaning of Section 2(1)(e) if the opposite parties dispute or deny the allegations contained in the complaint. [Vimla v. Ashwani Gupta, First Appeal No. 1062 of 2018, order dated 05-08-2018]

Case BriefsSupreme Court

“The subject of negligence in the context of medical profession necessarily calls for treatment with a difference.”

-CJ R.C. Lahoti (as he then was)

Supreme Court: The Bench comprising of Abhay Manohar Sapre and Vineet Saran, JJ. in a case of “medical negligence” as alleged by the respondents in the present case allowed the appeal and set aside the impugned order passed by the National Consumer Dispute Redressal Commission on no merits being laid down in favour of alleged medical negligence.

The present appeal was filed in consequence of the impugned order passed by the National Commission. The facts and points to be noted in the present case were that the appellant was a doctor with expertise in gall bladder surgery and he was alleged by Respondent 1 to have conducted a gall bladder surgery on Respondent 1 without her consent, which she had claimed to be given only for Laparoscopic surgery. On the grounds as mentioned above, Respondent 1 approached the State Commission claiming negligence on the part of the appellant as right after the year 1996, in 1997, the respondent had to get admitted to a hospital in Delhi and suffered from various other ailments which occurred due to the negligence on the part of appellant giving reference to the conventional gall bladder surgery which she had not agreed to. On refusal of any compensation from the State Commission, Respondent 1 approached the National Commission which awarded her compensation setting aside the State Commission’s order.

The above-stated matrix of contentions and a brief history of the present case led the appellant to file an appeal by special leave to appeal.

The Supreme Court, on perusal of the facts, evidence and placing reliance on the Bolam’s Test as suggested in the case of Bolam v. Friern Hospital Management Committee, [1957] 1 WLR 582, in which it was held that a “physician would not assure the patient of full recovery in every case. A surgeon cannot and does not guarantee that the result of surgery would invariably be beneficial, much less to the extent of 100% for the person operated on.”; the Apex Court concluded its decision while briefing out some important pointers of the case in order to deliver justice and clarity to comprehend the concept of medical negligence.

Therefore, the Court stated that the appellant-doctor was a qualified senior doctor with requisite knowledge and skill to perform the surgery of gall bladder. The said step of conducting the gall bladder surgery while conducting the laparoscopic surgery was taken due to the condition observed while doing the latter. On the occurrence of such emergent situation, the appellant took the consent of the Respondent 1’s husband on explaining him the whole situation. Further, the Court observed that Clause 4 of the Consent Form which was duly signed by Respondent 1, empowered the doctor to perform additional operation or procedure in the event of emergency.

Hence, it was not an unauthorized act of the appellant and he could legally perform on the basis of above-mentioned Clause 4 of the Consent Form on which Respondent 1 had duly signed. Adding to the above opinion of the Bench, it also stated that no medical evidence of any expert was adduced to prove the allegation of negligence by Respondent 1. The appeal was allowed by restoring the State Commission’s order and setting aside the National Commission’s order on finding no merits in their decision. [S.K. Jhunjhunwala v. Dhanwanti Kumar,2018 SCC OnLine SC 1721, decided on 01-10-2018]

Case BriefsHigh Courts

Tripura High Court: A writ petition for the claim of compensation in a medical negligence case was filed before a Single Judge Bench comprising of Ajay Rastogi, CJ.

Facts of the case are that the petitioner is the father of the deceased child who incurred a head injury. The child was shifted immediately to a hospital but after three days after the accident, he was moved to AGMC & G.B.P. Hospital, where he succumbed to his injuries. Petitioner alleged medical negligence in criminal complaint after which FIR was registered. For purpose of examining the same, a committee was constituted by the order of Director of Health Services. The report of committee examined the matter and concluded that treatment given to the patient was in accordance with the existing protocol and no negligence was found on part of the doctors involved in the treatment of deceased.

 The High Court was of the view that under limited scope of judicial review under Article 226 of the Constitution of India it is not possible to examine the allegation of medical negligence as the parties have not yet provided evidence in respect of their respective claims. Therefore, Court observed the quantification of compensation to be out of their scope due to the above reasons and the writ petition was dismissed. [Krishna Sarkar v. Government of Tripura,2018 SCC OnLine Tri 209, Order dated 13-09-2018]

Case BriefsHigh Courts

Delhi High Court: A Single Judge Bench comprising of Valmiki Mehta, J., allowed an appeal filed against the judgment of the trial court whereby the appellant Hospital was held liable for medical negligence.

Brief facts of the case are that the respondent-plaintiff underwent a sterilization operation in Lok Nayak Hospital. However, the said operation was not successful and the respondent conceived again which resulted in the birth of her seventh child. The respondent sued the appellant for not having taken reasonable care while operating her. The trial court, finding the appellant guilty of medical negligence, decreed the respondent’s recovery suit for a sum of Rs 2,20,000. Aggrieved thus, the present appeal was filed.

The High Court did not find the judgment impugned to be sustainable. It was observed that medically there is never a 100% chance of success in sterilization operations. The fact that the operation was not successful, that by itself could not be a reason to hold the appellant and its doctors guilty of negligence. There were no specific allegations against the doctors for committing negligence while conducting the operation; and in absence of the same, the appellant could not be held liable in fact or in law. Moreover, the respondent, before the operation, had signed the forms that clearly stated that the sterilization process is not always successful and there are some chances of failure, and if the operation is unsuccessful, the appellant or the doctor concerned will not be liable. In light of the discussion as mentioned herein, the Court allowed the appeal and set aside the judgment impugned. [Lok Nayak Hospital v. Prema,2018 SCC OnLine Del 10334, dated 06-08-2018]

Case BriefsHigh Courts

High Court of J&K at Jammu: A Bench comprising of M.K. Hanjura J., recently dealt with a petition wherein the petitioner primarily seeked the quashment of the order passed by the Chief Judicial Magistrate in the case wherein an FIR had been filed under Section 304-A of the Ranbir Penal Code against the petitioner and investigation was asked to be undertaken without considering the medical opinion of a team of experts.

The facts of the case are that the petitioner, a B-Grade Surgeon Specialist in a Government Hospital at Sarwal and a lecturer at the Surgery Department of the Government Medical College, Jammu, had treated upon Jai Kumar (patient in question) at the Government Hospital Sarwal, for Gallbladder stones. Following the operation for removal of the stones, owing to the patient complaining of discharge from the drain that was inserted into him during surgery, he was referred to the Government Medical College Jammu for specialized treatment on the 19/1/2013. But on 23/1/2013, he left the hospital despite not being cleared for discharge since the treatment was ongoing. Following this, the patient admitted himself to another hospital wherein, according to a report on the 11/2/2013, he was found to be fit and hence, discharged. 4 days later, the patient passed away. Despite this, the petitioner was made aware that the patient’s father had filed a complaint before the Director of Health Department alleging negligence on the petitioner’s part. An experts’ committee was set up to investigate the complaint which came to the conclusion that even though an injury had occurred to the Bile Duct which was common in such cases, the petitioner had taken appropriate care pre and post operation and had followed the standard protocols of treatment for saving the life of the patient. Despite the aforesaid observation made by the experts’ committee, the complainant went ahead and filed a criminal complaint before the CJM alleging medical negligence on the basis of false and frivolous allegations and the petitioner was not given notice of the criminal complaint until after the order had been passed consequent to which the SHO was directed to conduct a preliminary inquiry in the matter and to get opinions from a Board of Doctors. Following this, despite the medical board giving a unanimous opinion of no medical negligence having occurred in the case, the CJM directed the SHO to file an FIR under Sec. 304-A of the RPC which was simply based on the opinion of a private doctor. Besides, the petitioner was also made aware of the FIR through a news report in the local newspaper and subsequent to which he filed the petition under Sec. 561-A of the Cr.P.C.

The Court pointed out to cases like Ghulam Ahmad Wani v. State of J&K and Dr. Mufti Mehmood Ahmad Farooqi v. State of J&K wherein it was held that negligence would only be proved if it could be shown authoritatively that the acts of omission and commission were such that no medical professional in his ordinary senses and prudence would have done or failed to do. The Court then referred to Dr. Suresh Gupta v. Govt. of N.C.T. of Delhi wherein the Court had held that for conviction of a doctor for alleged criminal offence, the standard should be proof of recklessness and deliberate wrong doing i.e. a higher degree of morally blameworthy conduct. To prosecute a medical professional for negligence under criminal law it would need to be shown that the accused did something or failed to do something which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do.

The Court applied the ratio of law laid down in the above-mentioned cases and held that a simple lack of care, an error of judgment or an accident cannot form a proof of the negligence on the part of a medical professional. In a case, where a medical professional is accused of gross negligence, the Investigating Officer and the private complainants cannot be supposed to have the knowledge of medical science which will give them the stick to determine whether the act attributed to the accused (medical professional), does or does not amount to rash or negligent act under the provisions of Section 304(A) RPC. It also acknowledged that resorting to registering cases against medical practitioners under Sec. 304 of the RPC on the mere asking by private complainants will also deter medical professionals from working since the threat of criminal prosecution will always loom over their heads. The Court noted that in Jacob Mathew v. State of Punjab, the Supreme Court had held that a private complaint may not be entertained unless the complainant has produced, prima facie, evidence before the Court in the form a credible opinion given by another competent doctor to support the charge of rashness or negligence on the part of the accused doctor and that such an opinion should come from someone who will give an impartial and unbiased opinion applying the Bolam’s test to the facts collected in the investigation. Thus, keeping in mind the precedents, the Court thought it fit to allow the petitioner’s petition and hence, directed the police to quash the FIR. [Dr. Shyam Kumar Gupta v. State;  2017 SCC OnLine J&K 815, decided on 26.12.2017]

Case BriefsHigh Courts

Orissa High Court: While hearing a case on medical negligence. S. K. Sahoo, J. started his judgment with a famous quote by author George Bernard Shaw- “We have not lost faith, but we have transferred it from God to medical profession.” Further emphasizing upon the value of doctor in a common man’s life, the confidence he has in a doctor and the duty of care that the doctor owes towards people because of his profession, he stated that a doctor is treated like Dhanvantari- Physician of gods and the God of Ayurveda.

The petitioner- a doctor filed a revision petition against the impugned order by SDJM in taking cognizance of offence under S. 304 Part-II of the Penal Code and issuance of process against him. The prosecution had alleged that the doctor was negligent in treating the pregnant wife of complainant and while her delivery. After due course of investigation and examination of witnesses, the investigating officer came to the conclusion that the deceased died due to the act of the petitioner who was the owner of Women’s Care Nursing Home. He concluded that the doctor though had no intention of causing death of the deceased but had sufficient knowledge that such bodily injury i.e. rupture of uterus caused due to pulling out the unborn baby forcefully by means of forceps was enough to accelerate the death and cause death in ordinary course of nature. Also, no proper measures were taken by him to take out the baby from the womb when it was alive.

The investigating officer was also of the opinion that the petitioner knowingly kept the deceased in the Nursing Home with assurance to the complainant for normal delivery. The counsel for the petitioner-accused contended that no post-mortem had been conducted on the dead body of the deceased to ascertain the truth of the accusation. It was contended that when the deceased was brought to the Nursing Home, she was diagnosed as a case of Abruptio Placentae causing concealed hemorrhage and the condition of the deceased was very low.

Ascertaining the situation objectively, the Judge came to the conclusion that the doctor prima facie appeared to have not exercised the skill with reasonable competence and did not adopt the practice acceptable to the medical profession of that day. The Court went on to explain that it it was the duty of the petitioner to explain the deceased or at least the complainant, chances of success and the risk of failure of the suggested treatment and inform them about the foreseeable risks and possible negative effects of the treatment keeping in mind the patient’s specific condition.

The Court referring to Alister Anthony Pareira v. State of Maharashtra,  (2012) 2 SCC 648 held that there were no prima facie materials for commission of an offence under Section 304 Part II IPC. However, the materials were sufficient under S. 304-A IPC. The petition was disposed of with the direction to trial court that it was free to assess the evidence which would come on record during trial. [Dr. Subas Chandra Dash v. State of Orissa, 2017 SCC OnLine Ori 132, decided on 27.02.2017]

 

Tribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission (NCDRC): “The doctor/patient relationship is at a crossroads. Some patients want the doctor calling all the shots, deciding the best treatment path to follow. Patients miss the trust and warmth found in the personal bond with a caring, competent physician. Boundaries in the doctor-patient relationship is an important concept to help health professionals navigate the complex and sometimes difficult experience between patient and doctor where intimacy and power must be balanced in the direction of benefiting patients,” observed NCDRC while dismissing the charges of medical negligence leveled against a doctor. The Commission was hearing an appeal filed by a person, whose father had appendicitis, and after the operation was performed by the Respondent Doctor, the patient developed fecal fistula, subsequently suffered septicemia and thereafter passed away. Alleging medical negligence, appellant approached State Consumer Commission and argued that his father had appendicitis, which could be treated by medicines. Also the operation was not performed properly by the Respondent Doctor, due to which the patient developed fecal fistula and died. State Commission dismissed the complaint and feeling aggrieved, appellant filed appeal before NCDRC. After perusing the medical history of the patient and hearing both the parties, NCDRC observed that patient was presented with acute appendicitis and high fever. The patient’s blood sugar at the time of admission was also very high. As the patient was diabetic; it was the additional cause for poor healing of wound. The Commission also went through medical literature and several books on surgery and noted that when the appendix is perforated or gangrenous with peri-appendicitis, the frequency of septic complications reaches as much as 30% which includes wound infection, intra-abdominal abscess, fistula formation, and localized or diffused peritonitis. “The OP (Doctor) took utmost care and operated upon him as an emergency. The fecal fistula developed due to patient’s health condition. The patient was highly diabetic with high blood urea and creatinine levels. Further, OP (Doctor) took proper care of the fistula by providing regular dressing and antibiotics to the patient. The death occurred due to multiple factors. We do not find any negligence either during the appendicectomy surgery or during treatment of fecal fistula. Therefore the appeal is hereby dismissed,” noted the Commission while dismissing the appeal. Bibekananda Panigrahi v. Prime Hospitals Ltd., 2015 SCC OnLine NCDRC 1404, decided on 3-8-2015

Tribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission (NCDRC): NCDRC has awarded a compensation of Rs.5 lakh to the wife of Armed Forces personnel, who delivered a girl suffering from deformities which need supervision throughout the life, due to the negligence and deficient services of the doctors of Army Hospital and Base Hospital at Delhi Cantonment. During her pregnancy, the Complainant took treatment and attended to regular check-ups and ultrasound study (USG) at Base Hospital and Army Hospital. Even after transvaginal ultrasound, performed at Army Hospital it was informed to the Complainant that the foetus was well developed. Later, when she suffered pain, she was rushed to Singhal Nursing Home, where doctor performed ultrasound and found fetal anomalies like Spinal Bifida, Meningomyelocele, and hydrocephalus. This was also confirmed at Base Hospital. Later, Complainant delivered a female child with lack of spontaneous movements of lower limbs, lack of anal reflex and open neural tube defect. The attending doctor opined that the child may need a number of surgeries, throughout the life and there are no chances of proper cure. Hence, alleging deficiency in service and for the negligence caused by the doctors at Base Hospital and Army Hospital, Complainant approached District Forum which allowed the complaint and directed Base Hospital and Army Hospital to pay Rs.5 lakh as compensation to the complainant along with Rs.5,000/- as costs. In appeal, State Commission decided in favor of Base Hospital and Army Hospital and dismissed the complaint. After perusal of relevant documents, including the medical record of the Complainant, Commission noted that failure to diagnose the obvious foetal anomalies in 12th, 14th and 21st weeks of gestation by the doctors of Base Hospital and Army Hospital indicate that there was a breach in duty, as the doctors had not exercised their reasonable degree of skill and care. While rendering relief to the Complainant, NCDRC directed Base Hospital and Army Hospital to abide by their undertaking that the child, who was the daughter of a serving Armed Forces personnel, was entitled for free medical care for her entire life along with the required social and infrastructure support, and in addition, to pay Rs.5 lakh compensation and Rs.5,000/- as litigation charges, to the complainant. Alka Srivastava v. Base Hospital, Delhi Cantonment, 2015 SCC OnLine NCDRC 17, decided on 02.07.2015

Tribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission (NCDRC): While holding Post Graduate Institute of Medical Education & Research (PGI), Chandigarh guilty of medical negligence, NCDRC upheld the order of Chandigarh State Commission and also enhanced the total compensation from Rs 10 lakh to Rs 20 lakh in case of death of a girl due to delay in treatment. The Commission was hearing an appeal filed by the parents of the deceased challenging the order of Chandigarh State Commission vide which the Institute was directed to pay Rs 7 lakh and Chandigarh Transport Undertaking (CTU) to pay Rs 3 lakh to them. The parents of the deceased approached NCDRC for enhancement of compensation awarded by the State Commission. PGI, Chandigarh had also filed appeal before Commission in the matter. The facts of the case are that a schoolgirl aged about 16 years, on her way from her school to residence was crushed by a CTU bus when she was attempting to board it in July 2012. She was admitted into Advance Trauma Centre (ATC) of PGI, Chandigarh. Due to medical negligence and incompetence, her leg got infected and her left lower limb was amputated in an attempt to prevent the gangrene from spreading to other parts of the body. Later as the doctors of the Institute failed to check or control the spread of gangrene, it led to untimely death of the girl. The parents had alleged that the girl died due to delay in proper treatment and negligence on the part of the doctors of the Institute. In its defense, Institute submitted that the deceased was planned for surgery at the time of admission itself, but the procedure was delayed due to heavy rush of patients in the hospital. After perusing the material on record, which included report provided by eminent doctors in the case and hearing both the parties, NCDRC held the Institute guilty for medical negligence and noted that, “It may be pertinent to note that O.P.No.1-Hospital is a prestigious medical institute. Therefore, it is expected from such institute that it should work not in a purely bureaucratic manner i.e. patient should be treated as per seniority in the queue, but it should be run in a professional manner. The medical surgeries, operations and other emergency treatments are to be administered keeping in view the nature of ailment, seriousness and other exigencies as per the best judgment of the treating doctor. In the present case, it is an admitted fact that condition of the patient was quite serious from the time she was admitted in the Hospital. Keeping in view the nature of ailment from which the patient was suffering, O.P. No.1-Hospital should not have insisted on red  tapism.  On the other hand, it is really unfortunate that due to the bureaucratic approach and red tapism adopted by O.P. No.1-Hospital, a precious life of young girl could not be saved.” While upholding the order of State Commission, NCDRC dismissed the appeal filed by the Institute and increased the amount of compensation in the matter. “We deem it appropriate to award a further sum of Rs.10,00,000/- (Rupees Ten Lacs only) to the appellants, since they have to bear with all  the trauma, mental agony, pain and sufferings, throughout their remaining life,” NCDRC noted. Amit Sarkar v. Post Graduate Institute of Medical Education & Research, Chandigarh, 2015 SCC OnLine NCDRC 13, decided on 21.05.2015