TMI Blog2019 (1) TMI 1992X X X X Extracts X X X X X X X X Extracts X X X X ..... d already entered a situation involving haemorrhagic fever or a dengue shock syndrome when she was admitted on the morning of 15 November 2009. The real charge of medical negligence stems from the failure of the hospital to regularly monitor the blood parameters of the patient during the course of the day. Had this been done, there can be no manner of doubt that the hospital would have been alive to a situation that there was a decline progressively in the patient's condition which eventually led to cardiac arrest. In the present case, the record which stares in the face of the adjudicating authority establishes that between 7.30 am and 7 pm, the critical parameters of the patient were not evaluated. The simple expedient of monitoring blood parameters was not undergone. This was in contravention of WHO guidelines as well as the guidelines prescribed by the Directorate of National Vector Borne Diseases Control Programme. It was the finding of the Medical Council of India that while treatment was administered to the patient according to these guidelines, the patient did not receive timely treatment - To say that the patient or her family would have resisted a blood test, as is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, 2009, she was diagnosed with dengue fever. The report of the pathological laboratory, Glaze Pathology, reported the following state of health: RBC- 4.21 Million/cmm Hb-12,1 gm/d/TLC-1900/Cmm Platelet Count 1.79 lakh/cmm Dengue Ns 1 Antigen-Positive The patient was admitted to Chirayu Health Medicare hospital at Bhopal at about 7 am on 15 November 2009. She was immediately admitted to the Intensive Care Unit. Though she was afebrile, she reported accompanying signs of dengue fever including headache, body ache and a general sense of restlessness. The patient had a prior medical history which included catheter ablation and paroxysmal supra ventricular tachycardia suggestive of cardiac complications. 5. Upon admission at about 7.30 am, basic investigations were carried out. The blood report, together with the accompanying clinical examination indicated the following position: Hb 13.4 TLC 3000/Cumm, Platelet count 97000/cumim, PS for MP no malarial parasite seen Blood urea 21 mg% Serum bilirubin img% SGPT 521 U/L, SGOT 105Mg/dl ELECTROLYTE Sodium 140 meq/L Potassium 4.0 meq/L Ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ever visited in hospital to see the patient. The committee further noted that treatment administered to the deceased in the hospital was correct as per the medical guidelines but not given timely. Although, Dr. Goenka did not went (sic) to hospital to see the patient as the patient admitted there as per his assurance and advice, therefore, the Ethics committee prima facie found that there is a professional misconduct on the part of both the doctors and decided to issue a warning to Dr. A. Goenka and Dr. Abhay Tyagi with the directions to be more careful in future while treating such type of patients/cases. 12. This recommendation was accepted by the Executive Committee of the Medical Council. The appellate order of the Medical Council was communicated on 15 July 2015. 13. The Appellant instituted a complaint before the SCDRC seeking an award of compensation in the amount of Rs. 48 lakhs on the ground that his spouse suffered an untimely death due to the medical negligence of the treating doctors at the hospital. 14. By its judgment dated 27 April 2015, the SCDRC came to the conclusion that a case of medical negligence was established. An amount of Rs. 6 lakhs was awarded t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly established by the medical records of the case; (xiii) NCDRC, in the first appeal, has displaced the findings of fact which have been arrived at by the SCDRC without any basis in the evidence on record; and (xiv) On the question of compensation, the Appellant had also instituted a first appeal before the NCDRC since the award of compensation was inadequate. On the material which was placed on the record before the original authority, it is necessary for this Court to allow the appeal and to suitably enhance the amount of compensation. 17. On the other hand, learned Counsel appearing on behalf of the Respondents submitted that: (i) The patient had been suffering from fever from several days prior to her admission to the hospital. She was stable at the time of admission on 15 November 2009; (ii) The patient did not go into a situation of a dengue shock syndrome or hemorrhagic fever during the course of the day when she was admitted to the hospital; (iii) In such a situation, no requirement of regular monitoring of HCT was warranted in accordance with the guidelines which have been prescribed by the Directorate of National Vector Borne Diseases ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eal bone of contention in the present case is not the decision which was taken by the doctors to place the patient on a regime of intravenous fluids which, for the purposes of the present appeals, the Court ought to proceed as being on the basis of an established protocol. 23. The essential aspect of the case, which bears out the charge of medical negligence, is that between 7.30 am when the patient was admitted to hospital and 6 pm when she developed cardiac arrest, the course of treatment which has been disclosed in the counter affidavit does not indicate any further monitoring of essential parameters particularly those which could be detected by a laboratory analysis of blood samples. 24. Since her admission and through the day, the patient was administered intravenous fluids. The fluids were enhanced at 6 pm by 1.5 litres after she developed cardiac arrest. The record before the Court indicates that even thereafter, it was only at 7.15 pm that her blood levels were monitored. The lab report indicated a hemoglobin level of 8.1 and platelet count at 19,000. By then, the patient had developed acute signs of cardiac distress and she eventually died within a couple of hours th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xes H, J and K). Reassess the clinical status and repeat the haematocrit. If the haematocrit remains the same or rises only minimally, continue with the same rate (2-3 ml/kg/hr) for another 2-4 hours. If the vital signs are worsening and haematocrit is rising rapidly, increase the rate to 5-10 ml/kg/hour for 1-2 hours. Reassess the clinical status, repeat the haematocrit and review fluid infusion rates accordingly. Give the minimum intravenous fluid volume required to maintain good perfusion and urine output of about 0.5 ml/kg/hr. Intravenous fluids are usually needed for only 24-48 hours. Reduce intravenous fluids gradually when the rate of plasma leakage decreases towards the end of the critical phase. This is indicated by urine output and/or oral fluid intake that is/are adequate, or haematocrit decreasing below the baseline value in a stable patient. Patients with warning signs should be monitored by health care providers until the period of risk is over. A detailed fluid balance should be maintained. Parameters that should be monitored include vital signs and peripheral perfusion (1-4 hourly until the patient is out of the critical phase), urine output (4-6 hourly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... November 2009. The real charge of medical negligence stems from the failure of the hospital to regularly monitor the blood parameters of the patient during the course of the day. Had this been done, there can be no manner of doubt that the hospital would have been alive to a situation that there was a decline progressively in the patient's condition which eventually led to cardiac arrest. 29. This Court has consistently held in its decisions (the decision in Kusum Sharma (supra) reiterates that principle) that the standard of care which is expected of a medical professional is the treatment which is expected of one with a reasonable degree of skill and knowledge. A medical practitioner would be liable only where the conduct falls below the standards of a reasonably competent practitioner in the field. 30. Decisions of this Court elucidate on the standard of care which is expected of medical practitioners. Medical negligence jurisprudence in India is characterized by a reliance on the 'Bolam test'. In Bolam v. Friern Hospital Management Committee [1957] 1 WLR 582, the Defendant doctor treating a patient suffering from mental illness was held not guilty of medica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d technique if it has been proved to be contrary to what is really substantially the whole of informed medical opinion. 31. A three judge Bench of this Court in Dr Laxman Balkrishna Joshi v. Dr. Trimbak Bapu Godbole AIR 1969 SC 128 stipulated that the standard to be applied by a medical practitioner must be of a reasonable degree of care : 11. The duties which a doctor owes to his patient are clear. A person who holds himself out ready to give medical advice and treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person when consulted by a patient owes him certain duties viz. a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to give or a duty of care in the administration of that treatment. A breach of any of those duties gives a right of action for negligence to the patient. The practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires (cf. Halsbury&# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 's Institute of Medical Sciences v. Prasanth S Dhananka (2009) 6 SCC 1 affirmed the judgment in Jacob Matthew. 35. A two judge Bench of this Court in Kusum Sharma (supra) laid down guidelines to govern cases of medical negligence. Justice Dalveer Bhandari, speaking for the Court, held: 89. On scrutiny of the leading cases of medical negligence both in our country and other countries specially the United Kingdom, some basic principles emerge in dealing with the cases of medical negligence. While deciding whether the medical professional is guilty of medical negligence following well-known principles must be kept in view: I. Negligence is the breach of a duty exercised by omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. II. Negligence is an essential ingredient of the offence. The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment. III. The medical professional is expected to bring a reasonab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the patients. The interest and welfare of the patients have to be paramount for the medical professionals. 90. In our considered view, the aforementioned principles must be kept in view while deciding the cases of medical negligence. We should not be understood to have held that doctors can never be prosecuted for medical negligence. As long as the doctors have performed their duties and exercised an ordinary degree of professional skill and competence, they cannot be held guilty of medical negligence. It is imperative that the doctors must be able to perform their professional duties with free mind. He referred to the Bolam test and held thus: 72. The ratio of Bolam case is that it is enough for the Defendant to show that the standard of care and the skill attained was that of the ordinary competent medical practitioner exercising an ordinary degree of professional skill. The fact that the Respondent charged with negligence acted in accordance with the general and approved practice is enough to clear him of the charge. Two things are pertinent to be noted. Firstly, the standard of care, when assessing the practice as adopted, is judged in the light of knowledge av ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that it constitutes negligence. 39. In Bolitho v. City and Hackney Health Authority, (1996) 4 All ER 771 the House of Lords held that the course adopted by the medical practitioner must stand a test to reason: ...in my view, the court is not bound to hold that a Defendant doctor escapes liability for negligent treatment or diagnosis just because he leads evidence from a number of medical experts who are genuinely of opinion that the Defendant's treatment or diagnosis accorded with sound medical practice. In the Bolam case itself, McNair J. stated that the Defendant had to have acted in accordance with the practice accepted as proper by a responsible body of medical men. Later, at p. 588, he referred to a standard of practice recognised as proper by a competent reasonable body of opinion. Again, in the passage which I have cited from Maynard's case, Lord Scarman refers to a respectable body of professional opinion. The use of these adjectives--responsible, reasonable and respectable--all show that the court has to be satisfied that the exponents of the body of opinion relied upon can demonstrate that such opinion has a logical basis. In particular in cases i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be logically supported at all that such opinion will not provide the benchmark by reference to which the Defendant's conduct falls to be assessed. 40. Closer home, in V. Kishan Rao v. Nikhil Super Speciality Hospital, (2010) 5 SCC 513 a two judge Bench of this Court highlighted the shortcomings of the Bolam test: 19. Even though Bolam test was accepted by this Court as providing the standard norms in cases of medical negligence, in the country of its origin, it is questioned on various grounds. It has been found that the inherent danger in Bolam test is that if the courts defer too readily to expert evidence medical standards would obviously decline. Michael Jones in his treatise on Medical Negligence (Sweet and Maxwell), 4th Edn., 2008 criticised the Bolam test as it opts for the lowest common denominator. The learned author noted that opinion was gaining ground in England that Bolam test should be restricted to those cases where an adverse result follows a course of treatment which has been intentional and has been shown to benefit other patients previously. This should not be extended to certain types of medical accidents merely on the basis of how common they are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mohd. Ishfaq (2009) 3 SCC 1 held thus: 37. The standard of care has to be judged in the light of knowledge available at the time of the incident and not at the date of the trial. Also, where the charge of negligence is of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that point of time. 43. In the practice of medicine, there could be varying approaches to treatment. There can be a genuine difference of opinion. However, while adopting a course of treatment, the medical professional must ensure that it is not unreasonable. The threshold to prove unreasonableness is set with due regard to the risks associated with medical treatment and the conditions under which medical professionals function. This is to avoid a situation where doctors resort to 'defensive medicine' to avoid claims of negligence, often to the detriment of the patient. Hence, in a specific case where unreasonableness in professional conduct has been proven with regard to the circumstances of that case, a professional cannot escape liability for medical evidence merely by relying on a body of professional opinion. 44. In the present ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld not be personally liable. 49. That leads the Court to the question of damages. Finding the hospital and its Director guilty of medical negligence, the SCDRC directed compensation in the amount of Rs. 6 lakhs together with interest at 9 per cent. 50. While quantifying the compensation, the SCDRC was in error in holding that since the son and daughter of the Appellant are highly educated and working and had not joined as complainants, the complainant himself would be entitled to receive compensation only in the amount of Rs. 6 lakhs. 51. The complainant has lost his spouse, who was 56 years of age. Though she was not employed, it is now well settled by a catena of decisions of this Court that the contribution made by a non-working spouse to the welfare of the family has an economic equivalent. 52. In Lata Wadhwa v. State of Bihar, (2001) 8 SCC 197 a three judge Bench of this Court computed damages to be paid to dependants of deceased persons as well as burn victims in the aftermath of a fire at the factory premises. The Court took into consideration the multifarious services rendered to the home by a home-maker and held the estimate arrived at Rs. 12,000 per annum to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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