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MEDICAL NEGLIGENCE
Mr. M. GOVINDARAJAN By: Mr. M. GOVINDARAJAN
November 5, 2022
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Medical negligence

Medical negligence is the failure of a medical practitioner to provide proper care and attention and exercise those skills which a prudent, qualified doctor would do under similar circumstances.  It is common experience that when a patient goes to a hospital, he/she goes there on account of the reputation of the hospital, and with the hope that due and proper care will be taken by the hospital authorities. 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 the acts of commission or omission on behalf of their doctors.  

In KUSUM SHARMA AND ORS. VERSUS BATRA HOSPITAL AND MEDICAL RESEARCH CENTRE AND ORS. - 2010 (2) TMI 1257 - SUPREME COURT it was discussed the breach of expected duty of care from the doctor, if not rendered appropriately to negligence.  If a doctor does not adopt proper procedure in treating his patient and does not exhibit the reasonable skill he can be held liable it would amount for medical negligence.

Duties of doctors

Certain duties of the doctor have been laid down in LAXMAN BALKRISHNA JOSHI VERSUS TRIMBAK BAPU GODBOLE AND ORS. - 1968 (5) TMI 66 - SUPREME COURT.  The doctor owes to his patient certain duties which are-

  • a duty of care in deciding whether to undertake the case;
  • a duty of care in deciding what treatment to give; and
  • a duty of care in the administration of that treatment.

 A breach of any of the above duties may give a cause of action for negligence and the patient may on that basis recover damages from his Doctor.

Mismatch in transfusion of blood

The  Supreme Court in the case of POST GRADUATE INSTITUTE OF MEDICAL EDUCATION AND RESEARCH, CHANDIGARH VERSUS JASPAL SINGH AND ORS. - 2009 (5) TMI 1011 - SUPREME COURT held that mismatch in transfusion of blood resulting in death of the patient after 40 days, there is a case of medical negligence.

In SAMAD HOSPITAL AND ORS. VERSUS S. MUHAMMED BASHEER AND ORS. - 2022 (11) TMI 87 - THE NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI, the married couple, A. K. Nazeer and his wife Sajeena were undergoing infertility treatment at Samad Hospital, Thiruvananthapuram.  The abdominal Ultrasonography (USG) scan revealed fibroid uterus and advised laparoscopic removal of the fibroids. Sajeena underwent laparoscopic surgery on 01.08.02 and she was shifted to the post-operative ward. In the evening at 7.30 PM, Dr. Sathi M. Pillai, opposite part No. 2 asked for blood transfusion. The blood transfusion was started at 8.30 p.m., but immediately she developed blood transfusion reactions and complications. It was alleged to have happened due to mismatched blood by transfusion.  It is alleged that one staff of Cosmopolitan Hospital disclosed to the 2nd  Complainant and his brother Ashraf about the mistake committed at Samad Hospital by giving B+ve blood instead of O+ve blood.

Being aggrieved by the alleged negligence, during blood transfusion and further treatment, the complainants filed the Consumer Complaint before the State Commission, Kerala and prayed for compensation of Rs. 45 lakh with interest + Rs. 4.5 lakh towards medical expenditure and Rs. 50,000/- as costs.

The Opposite Parties Nos. 1 and 2, in their written versions, denied the mismatched blood transfusion to the patient Sajeena. It was submitted that the patient developed complications which were beyond their control and expectation.  The complications were promptly treated but the patient developed DIC (Disseminated Intra Vascular Coagulation), a very serious condition. The doctors took expert consultation of Dr. R. K. Prabhu from the Taluk Hospital and the patient was referred to a higher centre immediately for better management.  But the patient Sajeena expired. The State Commission partly allowed the Complaint and directed the Opposite Parties Nos. 1 and 2 to pay a total compensation of Rs. 9,33,000/- to the complainants Nos. 2 to 6 with cost of Rs. 15,000/-.

The appellant filed the present appeal before National Commission against the order of State Commission.  The National Commission observed that admittedly, the surgery was uneventful, but within half an hour of the initiation of the transfusion, the patient suffered shivering and diagnosed it as a transfusion reaction. It is pertinent to note that the witness Dr. Valentina deposed that the transfusion blood of B+ve group whereas the patient was O+ve .  It is pertinent to note that if the transfusion reaction is suspected, the duty of treating doctor is to immediately send the blood sample from a limb of other side and along with the blood for cross matching. The urine is to be examined for haemoglobinuria.  There was no such evidence that blood and urine sample were collected any efforts made my OP-1 hospital to rule out haemolytic reaction.  From the details of Anaesthesia notes dated 8.8.2002 maintained by OP-3 KIMS Hospital, recorded that as: - post myomectomy patient - mismatched blood transfusion - DIC Renal failure - pulmonary edema, ARDS. The aforesaid entry would make it abundantly clear that it was transfusion reaction.

The National Commission held that the State Commission erred in quantifying the amount Rs. 9,33,000/- as a compensation, but the complainants deserve for enhanced compensation. The complainants stated that the deceased was earning Rs. 15000/- per month, but nothing is on record to prove her earnings.  The Appellants shall jointly and severally pay Rs. 20 lakh as a compensation and Rs. 1 lakh towards cost.

Rectification of squint

In REBA MODAK AND ORS. VERSUS SANKARA NETHRALAYA AND ORS. - 2022 (11) TMI 35 - THE NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI, the son of the complainant was taken to the hospital of respondent for his squint eyes.  After examination of the child the doctors of the respondent advised for minor surgery to rectify the squint.  In the pre-operative examinations it was noticed faint functional systolic ‘murmur’   and chest wall abnormality.  Therefore the child was need for further examinations.  The doctor, who examined the child, gave clearance for General Anesthesia.  The surgery was done on 14.06.2000.  During the operation it was informed to the complainant that his son expired in the operation bed.     

The hospital issued patient’s case summary after two days i.e. on 16.06.2000. The discharge summary was vague without details of Cardio Pulmonary Resuscitation (CPR) and the happenings in the operation theatre.

The complainant submitted the following-

  • There was excessive gap between the last oral intake and commencement of the surgery. The patient was fed at 6 a.m. with just two biscuits and juice but, he was taken to OT at 3.00 p.m.  Thus, the child was kept on fasting for 9 hours 20 minutes, due to which he became hypoglycemic, which could lead to cardiac arrest.
  • Halothane was used as an anesthetic agent which was known to cause bradycardia.
  • Atropine was given as a pre-medication in all the cases to prevent bradycardia.
  • Atropine will have to be administered at least 45 minutes pre-operatively. In the present case, it is evident that the child was not administered the correct dose at right time. There was huge gap between atropinization and actual surgery.
  • The medical reports were handed over to them belatedly.

Being aggrieved by the gross medical negligence on the part of Opposite Parties, the complainants have filed the Complaint before this Commission and prayed for Rs. 1,00,20,000/- as compensation.

The respondents submitted the following-

  • As per medical guidelines, routine pre-operative ECG, ECHO and X-ray were not necessary for children and persons below the age of 40 years accept medically warranted. 
  • For squint surgery the infrastructure and operation theatre (OT) is fully equipped with monitor, centralized Oxygen and all facilities for administering GA or any type of anesthesia.
  • Before surgery, the doctor scrutinized all the systems in OT which found everything in order.
  • The child did not co-operate to place IV drip in OT, therefore, the child was reassured and asked to breathe through a mask by which 50% Oxygen(O2) with 50% Nitrous Oxide (N2O) was administered.
  • Then, Halothane was administered in the gas mixture using fluotec vaporizer, with starting concentration of 1% and gradually increased to 3% over a period of 1 to 3 minutes.
  • At 3.20 pm, the Anesthetist noticed that the ECG Monitor was showing steady drop in the heart rate to a sinus bradycardia of 50 per minute.
  • Immediately, the Anesthetist cut off Nitrous oxide and Halothane and the patient was ventilated with 100% oxygen.
  • Injection Adrenaline and Injection Atropine given intravenously and cardiac massage continued. At 3.25 P.M, the EGG monitor showed ill sustained agonal rhythm with Asystole. Physician joined the team.
  • Other resuscitative measures to correct acidosis were carried out with Injection Sodium bicarbonate, administration of Hydrocortisone, Injection Ephedrine and cardiac massage was continued. In spite of all resuscitative measures, the patient could not be saved and around 5.30 p.m., the team abandoned the CPR and declared the patient dead. 
  • The required details and the entire medical record were issued on the request letter dated 30.10.2000. Therefore, there was no deficiency in service.  
  • Consent form was signed by the father the child in the presence of a witness.
  • The complainants filed police complaint, exerted political pressure and wrote to PMO & Railway Minister. The complainants also indulged in media trial, press releases against the Opposite Party.

The Government of Tamil Nadu, in response to the representation made by the complainants to the Prime Minster and the Railway Minister, appointed four - committees to enquire the matter. After enquiry, the committees did not observe any adverse comment or report on the hospital facilities and on the treatment aspect. The death was occurred due to Cardio-respiratory arrest. 

The issues before the Commission are that whether the treating doctors at Sankara Nethralaya committed the breach in their duty of care, which was the proximate cause of death of Child. The Commission observed that it was the failure of duty of care and the casual approach of the Cardiologist. Moreover, the entries made in the progress report appear to be an afterthought and added later on.  The Commission further analyzed the treatment given by the respondents.  Accordingly, the Commission held that  the OP-1 Sankara Netralaya to be vicariously liable for the acts of omission and commission committed by the OP-2 and 3 as being jointly and severally liable to pay compensation to the Complainants.  The Commission directed the hospital to pay Rs. 85 lakhs; the Anesthetist shall pay Rs. 10 lakh and the operating Ophthalmologist shall pay Rs. 5 lakh to the parents of the deceased child.  The hospital shall pay Rs.1 lakh towards the cost of the case.

Post Operative medical negligence

In DR. (MRS.) CHANDA RANI AKHOURI & ORS. VERSUS DR. M.A. METHUSETHUPATHI & ORS. - 2022 (11) TMI 90 - SUPREME COURT, in the first instance in April, 1990, Naveen Kant developed hypertension.  After having treatment with some doctors finally they took treatment with a specialist, the respondent for treatment.  The respondent successfully performed kidney transplantation to his patient on 12.11.1995.  The patient was discharged from the hospital on 24.11.1995.  The respondent advised to take outdoor treatment for dressing of wounds etc.  The complaint of the patient is on his sufferings in his left arm.  The patient suffered from severe head ache.  He was admitted in the hospital and given continuous treatment.  Despite the treatment the patient expired on 03.02.1996.

The appellants, wife of the patient and their children, alleged post operative medical negligence on the part of the respondents before the National Commission and claim compensation to the tune of Rs.95.16 lakhs.  The Commission, after taking into consideration the pleadings so also the evidence on record arrived to a conclusion that the patient Naveen Kant was under the hands of the expert team of doctors and possible medical care at the command of the doctors was fully administered to him and after being discharged from the hospital on 24.11.1995 still thereafter he was continued to be under treatment and merely because the expert team of doctors could not save him after his prolonged illness and he died on 03.02.1996 that in itself could not be considered to be a case of post operative medical negligence and in consequence thereto dismissed the complaint filed at the instance of the appellants under judgment impugned dated 21.07.1999.

Against the judgment of National Commission the appellants filed the present appeal before the Supreme Court.  The Supreme Court observed that there is no dispute that the kidney transplantation of the patient on 12.11.1995 was successful and they had complained but the complaint is only in reference to post operational medical negligence as the respondents have failed to discharge their statutory duty of care and medical protocols subsumed there under, including follow up care and that according to the appellants is a medical negligence on the part of the respondents in extending treatment to the patient Naveen Kant and being the case of post operative negligence, they have lost their patient on 3rd February, 1996.

The doctors can provide their best medical assistance available at their command but merely because they could not save the patient, that could not be considered to be a case of post operative medical negligence despite the fact that medical protocol administered by them was duly supported by the two medical experts of the field who appeared on behalf of the respondents.  In the given circumstances, the finding which has been returned by the Commission needs no further interference by the Supreme Court.

Conclusion

It clearly emerges from the exposition of law 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. In the practice of medicine, there could be varying approaches of treatment. There could be a genuine difference of opinion. However, while adopting a course of treatment, the duty cast upon the medical practitioner is that he must ensure that the medical protocol being followed by him is to the best of his skill and with competence at his command.  At the given time, medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.

 

By: Mr. M. GOVINDARAJAN - November 5, 2022

 

 

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