MEDICAL
NEGLIGENCE CASES - CIVIL LAWS
Page 1
Adv.C.K.SIVADASAN,
Consultant
– Medico-Legal & Hospital Administration,
Email: cksdas@yahoo.co.in
INDEX
|
CASE
|
SUBJECT
|
PAGE
|
|
Albrighton vs.
|
PROFESSIONAL NEGLIGENCE
|
31
|
|
Allen vs. Flood, (1898) 7 Hil.Cas.349
|
MOTIVE IS
IRRELEVANT IN TORTS
|
11
|
|
Antonio Dias vs. Frederick Augustus (AIR 1936 PC 154)
|
NEGLIGENCE - ONUS OF PROOF
|
14
|
|
Arabind
Das vs. State of
|
INHERENT
POWERS OF COURT
|
32
|
|
Ayers vs. Morgan (
|
RULE OF LIMITATION
|
22
|
|
|
DISCOVERY
RULE
|
120
|
|
Bolitho vs. City and Hackney health Authority [1997] 4 All ER 771
|
WEIGHING OF RISKS AGAINST BENEFIT
|
72
|
|
Brazier vs. Ministry of Defence (1965) 1 Ll. Law
Rep. 26
|
(NEGLIGENCE - RES IPSA LOQUITUR)
|
25
|
|
Brown vs. Merton, Sutton and Wandsworth Area
Health Authority (1982) 1 All E.R. 650
|
NEGLIGENCE - RES IPSA LOQUITUR
|
34
|
|
Bull vs.
|
NEGLIGENCE - RES IPSA LOQUITUR
|
48
|
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration,
Email:cksdas@yahoo.co.in
MEDICAL
NEGLIGENCE CASES - CIVIL LAWS Page 2
|
CASE
|
SUBJECT
|
PAGE
|
|
Cardin vs. La Cité de Montréal [1961] S.C.R. 655(Supreme Court of Canada)
|
DOCTOR IS NOT A GUARANTOR
|
22
|
|
Cavan
vs. Wilcox (1973) 44 D.L.R. (3d) 42
|
(NEGLIGENCE - RES IPSA LOQUITUR)
|
28
|
|
Dr. A.S. Chandra And Ors. vs. Union Of
|
MEDICAL PROFESSION
|
55-59
|
|
L.Chandra Kumar vs. Union of
|
LEGISLATIVE COMPETENCE
|
19
|
|
Charan Singh vs. Healing
|
SPEEDY SUMMARY TRIAL & QUANTUM OF
COMPENSATION
|
77-78
|
|
Dr.
C.C. Choubal vs. Pankaj Srivastava: IV
(2003) CPJ 111 NC (NCDRC)
|
INSURANCE COMPANY A PROPER PARTY IN MEDICAL NEGLIGENCE CASE
|
86
|
|
City of
|
(RULE OF LIMITATION)
|
18
|
|
Clarke vs. Warboys, The Times, March 18, 1952, CA
|
NEGLIGENCE -
RES IPSA LOQUITUR
|
17
|
|
Common Cause, A Registered
Society vs. Union of
|
(THE OBJECT OF THE C P ACT)
|
80
|
|
Coyne vs.
|
NEGLIGENCE - RES IPSA LOQUITUR
|
50
|
|
Crits and
Crits vs. Sylvester, [1956] O.R. 132 affd. [1956] S.C.R. 991(Supreme Court of
|
NEGLIGENCE -
RES IPSA LOQUITUR
|
21
|
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration,
Email:cksdas@yahoo.co.in
MEDICAL
NEGLIGENCE CASES - CIVIL LAWS Page 3
|
CASE
|
SUBJECT
|
PAGE
|
|
|
COMPENSATION TO THE DEPENDENT
|
15
|
|
Dilworth vs. Commissioner of Stamps (1899 AC
99)
|
‘INCLUDE’ INTERPRETATION
|
12
|
|
Donald McCormick vs. Gaston Marcotte, [1972] S.C.R. 18 (Supreme Court of
|
REASONABLE CARE
|
27
|
|
Donoghue vs. Stevenson [1932] AC 562
|
DUTY TO CARE
|
13
|
|
Eady vs. Tenderenda, [1975] 2
S.C.R. 599 (Supreme Court of
|
NEGLIGENCE - RES IPSA LOQUITUR
|
29-30
|
|
Eyre vs. Measday (1986) 1 ALL ER 488
|
FAILURE TO CONVEY
INFORMATION
|
35-36
|
|
re. F., (Court of Appeal in
|
ADDITIONAL
TREATMENT WITHOUT CONSENT
|
13
|
|
F. vs. R. (26) (1983) 33 SASR 189 (
|
REASONABLE CARE –STERILIZATION
|
34
|
|
Frank Hellenius and Rock
Leclerc vs. Thomas Lees[1972]
S.C.R. 165 (Supreme Court of
|
NEGLIGENCE - RES IPSA LOQUITUR
|
28
|
|
Gobald Motor Service Ltd.,
|
HOUSEWIFE MAKES
CONTRIBUTION
|
23
|
|
Dr.
B.N. Gurudev vs. Dr. N. Ramanna and Ors., I (2008) CPJ 84 NC (NCDRC)
|
SUFFICIENT CARE
|
102-103
|
|
Hajgato vs.
|
NEGLIGENCE - RES
IPSA LOQUITUR
|
34
|
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration,
Email:cksdas@yahoo.co.in
MEDICAL
NEGLIGENCE CASES - CIVIL LAWS Page 4
|
CASE
|
SUBJECT
|
PAGE
|
|
R.D.Hattangadi vs. Pest
Control (
|
QUANTUM OF COMPENSATION
|
64
|
|
Hedley Byrne & Co.
Ltd. vs. Heller & Partners Ltd. [1964] AC 465
|
REASONABLE RELIANCE
|
25
|
|
Hotson vs.
|
ISSUE OF CAUSATION
|
38
|
|
Hunter vs. Hanley, 1955. SLT 213
|
DIFFERENCES OF OPINION
|
20
|
|
Indian Medical Association vs.
V.P. Shantha & Ors 1996 AIR 550, 1995 SCC (6) 651
|
MEDICAL PROFESSION –
SERVICE
|
69-71
|
|
Jones vs. Manchester Corporation, 1952.
2 All ER 125
|
TRAINEE
DOCTOR
|
17
|
|
Josephine
Flanagan vs. Mount Eden
General Hospital LEXSEE (
|
DISCOVERY RULE
|
121-122
|
|
V. Kishan Rao vs.
|
EXPERT EVIDENCE
|
112-113
|
|
Kishore
Lal vs. Chairman, Employees State Insurance Corporation (Supreme Court of India) 2007; CASE
NO.: Appeal (civil) 4965 of 2000
|
ESIC
UNDER CP Act
|
91-93
|
|
Lata Wadhwa & Ors vs. State Of Bihar & Ors. (Supreme Court of
|
QUANTUM OF COMPENSATION
|
79
|
|
Laxman Thamappa Kotgiri vs.
G.M.Central Railway & Ors. 2005 (1) Scale 600, (2007) 4 SCC 596
|
HOSPITAL RUN BY THE EMPLOYER
|
89-90
|
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration,
Email:cksdas@yahoo.co.in
MEDICAL
NEGLIGENCE CASES - CIVIL LAWS Page 5
|
CASE
|
SUBJECT
|
PAGE
|
|
Dr. Laxman Balkrishna Joshi
vs. Dr. Trimbak Bapu Godbole and Anr. AIR 1969
SC 128
|
LACK OF PROPER CARE
|
26
|
|
Laxmi Engineering Works vs.
PSG Industrial Institute [(1995) 3 SCC 538]
|
BUSINESS - CONSUMER
|
63
|
|
Lindsey vs. Mid-Western Health Board (1993) 2 I.R.
147 at 181
|
NEGLIGENCE - RES
IPSA LOQUITUR
|
60
|
|
Livingstone
vs. Rawyards Coal Co. (1880) 5 AC 25
|
QUANTUM OF COMPENSATION
|
11
|
|
|
GOVERNMENT AMENABLE TO
THE CP ACT
|
61-62
|
|
Smt.
Madhubala vs. Govt. Of NCT of
|
STERILIZATION
|
90
|
|
|
PROFESSIONAL SKILL
|
14
|
|
Malay Kumar Ganguly vs. Sukumar Mukherjee & Ors. (Supreme court of India)
(2009) 9 SCC 221
|
STEROIDS IN TREATMENT
|
110-111
|
|
Mallett vs. Mc Mongle (1969 (2) All ER 178)
|
MULTIPLIER
METHOD
|
26
|
|
Malette vs. Shulman et al. 72 O.R. (2d) 417
(
|
BLOOD
TRANSFUSION WITHOUT CONSENT
|
40-43
|
|
INS. Malhotra vs. A. Kripalani and Ors., (2009)
4 SCC 705
|
NEGLIGENCE - TUBERCULAR PERITONITIS
|
105-107
|
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration,
Email:cksdas@yahoo.co.in
MEDICAL
NEGLIGENCE CASES - CIVIL LAWS Page 6
|
CASE
|
SUBJECT
|
PAGE
|
|
Martel vs. Hotel-Dieu St-Vallier,[1969] S.C.R. 745 (Supreme Court of
|
NEGLIGENCE - RES IPSA LOQUITUR
|
25
|
|
Martin F. D’Souza vs. Mohd. Ishfaq
[(2009) 3 SCC 1]: 2009ACJ1695,
AIR2009SC2049, 2009(2) AWC1220 (SC), 2009(57)BLJR985, 2009(3)BomCR202,
2009BusLR184(SC), (2009)154PLR1, RLW2009(2)SC1094, (2009)3SCC1,
2009(2)UJ794(SC)
|
MEDICAL NEGLIGENCE
|
104-105
|
|
Maynard vs.
|
TEST OF REASONABILITY
|
35
|
|
McGhee
vs. National Coal Board, 1972. 3 All ER 1008, 1 WLR 1
|
BREACH OF DUTY
|
27
|
|
Md. Suleman Ansari (D.M.S.) vs. Shankar
Bhandari (2005) 12 SCC 430
|
UNQUALIFIED DOCTOR
|
87
|
|
Dr. J.J. Merchant & Ors vs. Shrinath Chaturvedi (Supreme Court of
|
DELAY IN PROCEEDINGS
|
81
|
|
Minor Marghesh K. Parikh vs. Mayur
H.Mehta (Supreme Court of
|
GANGRENE – NEGLIGENCE
|
114-115
|
|
A. S. Mittal
& Anr. vs. State of U.P. & Ors. JT 1989 (2) SC 419, 1989 (3) SCC 223
|
FREE EYE CAMP
|
45-47
|
|
Morgan vs. Grace Hospital Inc. (
|
DISCOVERY RULE
|
119
|
|
|
UNAUTHORIZED SURGICAL PROCEDURE
|
16
|
|
Nihal Kaur
vs. Director, P.G.I.M.S.R. (1996) CPJ 112
|
SCISSORS LEFT BY THE
SURGEON
|
71
|
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration,
Email:cksdas@yahoo.co.in
MEDICAL
NEGLIGENCE CASES - CIVIL LAWS Page 7
|
CASE
|
SUBJECT
|
PAGE
|
|
Oriental Insurance Company
Ltd. vs. Jashuben and Ors. [(2008) 4 SCC 162]
|
QUANTUM OF COMPENSATION
|
101
|
|
Overseas
Tank Ship Ltd. vs. Morts Dock and
Engineering Co. (Wagon Mound case), (1963) AC 388: WLR 126
|
TEST OF REASONABLE
FORESEEABILITY
|
23
|
|
Penney
vs.
|
LOGICAL
APPROACH
|
19
|
|
Pinnamaneni Narasimha Rao vs.
Gundavarapu Jayaprakasu, AIR 1990 AP-HC 207; I (1990) ACC 468; 1990 ACJ 350
|
NEGLIGENCE - ANAESTHETIST & SURGEON
|
48-50
|
|
re Polemis and Furance Withy & Co, (1921) 3
KB 560
|
TEST OF DIRECT
CONSEQUENCES
|
12
|
|
Poonam Verma vs. Ashwin Patel & Ors (SC of
|
TREATMENT IN ANOTHER STREAM OF MEDICINE
|
64-67
|
|
Quinton vs.
|
DISCOVERY RULE
|
120
|
|
R. vs. Bateman (1925), 41 T.L.R. 557
|
PROFESSIONAL STANDARD OF CARE
|
12
|
|
Re: The Special Courts Bill, 1978 :
|
JUDICIAL ADMINISTRATION
|
31
|
|
D.
Rama Rajyam (Dr.) vs. P.K. Vasudeva Rao And Ors. NCDRC: III (2007) CPJ 295 NC
|
NEGLIGENCE – HUSBAND AND CHILDREN
ELIGIBLE FOR DAMAGES
|
96-98
|
|
Reibl vs. Hughes, (30) (1980) 114 DLR (3d)
(Supreme Court of
|
EXPERT EVIDENCE
|
32
|
|
Reserve Bank
of
|
INTERPRETATION OF
STATUTE
|
37
|
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration,
Email:cksdas@yahoo.co.in
MEDICAL
NEGLIGENCE CASES - CIVIL LAWS Page 8
|
CASE
|
SUBJECT
|
PAGE
|
|
Rietz vs. Bruser (No.2) (1979) 1 W.W.R. 31, Man
QB
|
NEGLIGENCE - RES
IPSA LOQUITUR
|
31
|
|
Roe vs.
Ministry of Health, 1954(2) A.E.R. 151
|
NO MEDICAL PRACTITIONER
IS AN INSURER
|
17
|
|
|
DUTY OF CARE – AGAINST BOLAM TEST
|
52-54
|
|
Rosane vs. Senger, 112
|
RULE OF LIMITATION
|
15
|
|
Roybal vs. White, 383 P.2d 250 (N.M. 1963)
|
DISCOVERY RULE – NON
APPLICATION
|
24
|
|
Samira Kohli vs. Dr. Prabha Manchanda & Anr. (2008)
2 SCC 1.
|
INFORMED CONSENT
|
99-101
|
|
S. P. Sampath Kumar vs. Union
of
|
JUDICIAL REVIEW
|
37
|
|
Sathy
M. Pillai (Dr.) And Anr. vs.
|
FAILURE IN
ANAESTHESIA
|
93-96
|
|
Savitri vs. Gobind Singh Rawat
|
INHERENT POWERS OF COURT
|
18
|
|
Scott vs.
London St.Katherine Docks Co. [(1865) 3 H C. 596],
|
DEFICIENCY IN SERVICE
|
11
|
|
Sethuraman
Subramaniam Iyer vs. Triveni Nursing Home and Another (1998) CPJ 110
|
EXPERT EVIDENCE NOT
AVAILABLE
|
77
|
|
V.N.Shrikhande vs. Anita Sena Fernandes (Supreme Court of
|
RULE OF LIMITATION
|
115-119
|
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration,
Email:cksdas@yahoo.co.in
MEDICAL
NEGLIGENCE CASES - CIVIL LAWS Page 9
|
CASE
|
SUBJECT
|
PAGE
|
|
|
DERELICTION OF DUTY
& PARENTS OF CHILD “CONSUMER”
|
43-44
|
|
Dr. Sr.
Louie and Anr. vs. Smt. Kannolil Pathumma & Anr. 1993
(1) CPR 422 (NCDRC)
|
INSUFFICIENTLY QUALIFIED
|
60
|
|
C.P.Sreekumar (Dr.), MS
(Ortho) vs. S.Ramanujam (2009) 7 SCC 130
|
INFORMED CONSENT, HEMIARTHROPLASTY & INTERNAL FIXATION
|
108-110
|
|
State of
|
STERILIZATION OPERATION
|
89
|
|
State of
|
STERILIZATION OPERATION
|
79
|
|
State of
|
EXECUTION AS PER C P ACT
|
82
|
|
State of
|
STERILIZATION OPERATION
|
88
|
|
State of
|
RIGHT TO EQUALITY -
ARTICLE 14
|
20
|
|
Dr. C.S. Subramanian vs.
Kumarasamy And Ors. (
|
PROFESSION WITH MULTIFARIOUS DIFFICULTIES
|
67-68
|
|
Dr. Suresh Gupta vs. Govt. of NCT of
|
NEGLIGENT ACT
|
87
|
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration,
Email:cksdas@yahoo.co.in
MEDICAL
NEGLIGENCE CASES - CIVIL LAWS Page 10
|
CASE
|
SUBJECT
|
PAGE
|
|
R.V.E Venkatachala Gounder
vs. Arulmigu Viswesaraswami & V.P.Temple,
(2003) 8 SCC 752
|
PRINCIPLES OF NATURAL
JUSTICE
|
82-84
|
|
Tarun Thakore vs. Dr. Noshir M. Shroff, Dr. Dariel, 2003
(1) CLD 62 (NCDRC)
|
LASIK & PRK
|
84-86
|
|
Thake vs.
Morris, [1986] 1 All ER 497 (CA) : (1986) QB 644
|
GUARANTEE OF 100%
SUCCESS
|
37
|
|
Dr.
T.T. Thomas vs. Smt. Elisa and Ors.,
I (1987) ACC 445, AIR 1987 Ker. 52 (Kerala H C)
|
DEVALUATION OF STANDARDS IN PROFESSIONAL
ETHICS – NEGLIGENCE
|
38-39
|
|
Town Area
Committee vs. Prabhu Dayal, AIR 1975
All. 132
|
MOTIVE IS IRRELEVANT IN
TORTS
|
29
|
|
United
Provinces vs. Atiqa Begum, FCR [1940 FCR 119]
|
RULE OF INTERPRETATION
|
14
|
|
Vinitha Ashok vs.
|
PROFESSIONAL
OPINION
|
80
|
|
Vishnu basudeo VS. T L H Smith Pearse, AIR 1949 Nag. 364
|
MOTIVE IS IRRELEVANT IN
TORTS
|
16
|
|
Wagon Mound case (Overseas Tank Ship Ltd. vs. Morts Dock and Engineering Co.), (1963)
AC 388: WLR 126
|
TEST OF REASONABLE
FORESEEABILITY
|
|
|
Whitehouse vs.
|
STANDARD OF CARE
|
33
|
|
Mr
‘X’ vs. Hospital ‘Z’, AIR 1999 SC 495,
JT 1998 (7) SC 626, 1998 (6) SCALE 230
|
DISCLOSURE OF AIDS
DIAGNOSIS
|
73-75
|
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration,
Email:cksdas@yahoo.co.in
MEDICAL NEGLIGENCE CASES - CIVIL
LAWS Page 11
Cases in chronological
order of verdict
(DEFICIENCY IN SERVICE)
Scott vs. London
St.Katherine Docks Co. [(1865) 3 H C. 596],
Where the
thing is shown to be under the management of the defendant or his servants, and
the accident is such as in the ordinary course of things does not happen if
those who have the management use proper care, it affords reasonable evidence,
in the absence of explanation by the defendants, that the accident arose from
want of care.
(QUANTUM OF COMPENSATION)
Livingstone vs. Rawyards Coal Co. [(1880) 5 AC 25]
Indisputably,
grant of compensation involving an accident is within the realm of law of
torts. It is based on the principle of restitution
in integrum. The said principle provides that a person entitled to damages
should, as nearly as possible, get that sum of money which would put him in the
same position as he would have been if he had not sustained the wrong.
(MOTIVE IS IRRELEVANT IN TORTS)
Allen vs.
Flood, (1898) 7 Hil.Cas.349
Although the
rule may be otherwise with regard to crime, the law of England
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration, Email:cksdas@yahoo.co.in
MEDICAL NEGLIGENCE CASES - CIVIL
LAWS Page 12
(‘INCLUDE’ INTERPRETATION)
Dilworth vs. Commissioner of Stamps (1899 AC 99)
‘Include’ is
very generally used in interpretation clauses in order to enlarge the meaning
of the words or phrases occurring in the body of the statute, and when it is so
used these words or phrases must be construed as comprehending, not only such
things as they signify according to their natural, import, but also those
things which the definition clause declares that they shall include.
(TEST OF DIRECT CONSEQUENCES)
re Polemis and Furance Withy & Co, (1921) 3
KB 560
Given the
breach of duty which constitutes the negligence, and given the damage as a
direct result of negligence, the anticipations of the person whose negligent
act has produced the damage appears to me to be irrelevant. Once the act is
negligent, the fact that its operation was not foreseen or that the damage in
fact, it causes is not the exact kind of damage one would expect, is
immaterial, so long as the damage is, in fact, directly traceable to the
negligent act, except that they could not avoid its results.
(PROFESSIONAL
STANDARD OF CARE)
R. vs. Bateman (1925), 41 T.L.R.
557
If a person holds himself out as possessing special
skill and knowledge and he is consulted, as possessing such skill and
knowledge, by or on behalf of a patient, he owes a duty to the patient to use
due caution in undertaking the treatment. If he accepts the responsibility and
undertakes the treatment and the patient submits to his direction and treatment
accordingly, he owes a duty to the patient to use diligence, care, knowledge,
skill and caution in administering the treatment. No
contractual
relation is necessary, nor is it necessary that the service be rendered for
reward.The law requires a fair and reasonable standard of
care and competence. Each case must, of course, depend upon its own particular
facts. If a physician has rendered treatment in a manner which is in conformity
with the standard and recognized practice followed by the members of his
profession, unless that practice is demonstrably unsafe or dangerous, that fact
affords cogent evidence that he has exercised that reasonable degree of care
and skill which may be required of him.
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration,
Email:cksdas@yahoo.co.in
MEDICAL NEGLIGENCE CASES - CIVIL
LAWS Page 13
(DUTY TO CARE)
Donoghue vs. Stevenson [1932] AC 562
You
must take reasonable care to avoid acts or omissions which you can reasonably
foresee would be likely to injure your neighbour. Who, then, in law is my
neighbour? The answer seems to be-persons who are so closely and directly
affected by my acts that I ought reasonably to have them in contemplation as
being so affected when I am directing my mind to the acts or omissions that are
called in question.
(ADDITIONAL
TREATMENT WITHOUT CONSENT)
Re. F., (Court of Appeal in England
The additional or further treatment which
can be given (outside the consented procedure) should be confined to only such
treatment as is necessary to meet the emergency, and as such needs to be carried
out at once and before the patient is likely to be in a position to make a
decision for himself.
A
surgeon performs an operation without his consent on a patient temporarily rendered
unconscious in an accident; he should do no more than is reasonably required,
in the best interests of the patient, before he recovers consciousness. I can
see no practical difficulty arising from this requirement, which derives from
the fact that the patient is expected before long to regain consciousness and
can then be consulted about longer term measures.
It is
quite possible that had the patient been conscious, and informed about the need
for the additional procedure, the patient might have agreed to it. It may be
that the additional procedure is beneficial and in the interests of the
patient. It may be that postponement of the additional procedure (say removal of
an organ) may require another surgery, whereas removal of the affected organ
during the initial diagnostic or exploratory surgery would save the patient
from the pain and cost of a second operation. Howsoever practical or convenient
the reasons may be, they are not relevant. What is relevant and of importance
is the inviolable nature of the patient's right in regard to his body and his
right to decide whether he should undergo the particular treatment or surgery
or not. Therefore at the risk of repetition, we may add that unless the
unauthorized additional or further procedure is necessary in order to save the
life or preserve the health of the patient and it would be unreasonable (as
contrasted from being merely inconvenient) to delay the further procedure until
the patient regains consciousness and takes a decision, a doctor cannot perform
such procedure without the consent of the patient.
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration,
Email:cksdas@yahoo.co.in
MEDICAL NEGLIGENCE CASES - CIVIL
LAWS Page 14
(NEGLIGENCE - ONUS OF PROOF)
Antonio Dias vs. Frederick
Augustus (AIR 1936 PC 154)
Where a
suit is filed for damages against a doctor, the onus of proof is upon the
plaintiff, and if he is to succeed he must demonstrate, beyond reasonable
doubt, that the defendant was negligent, and that his negligence caused the
injury of which the plaintiff complains.
(PROFESSIONAL SKILL)
A surgeon does
not become an actual insurer; he is only bound to display sufficient skill and
knowledge of his profession. If from some accident, or some variation in the frame
of a particular individual, an injury happens, it is not a fault in the medical
man.
(RULE OF INTERPRETATION)
United Provinces vs.
Atiqa Begum FCR [1940 FCR 119]
None of the
items in the Lists is to be read in a narrow or restricted sense and that each
general word should be held to extend to all ancillary, on subsidiary matters
which can fairly and reasonably be said to be comprehended in it. It is,
therefore, clear that in construing an entry in a list conferring legislative
powers the widest possible construction according to their ordinary meaning
must be put upon the words used therein..... The cardinal rule of
interpretation, however, is that words should be read in their ordinary,
natural and grammatical meaning subject to this rider that in construing words
in a constitutional enactment conferring legislative power the most liberal
construction should be put upon the words so that the same may have effect in
their widest amplitude.
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration,
Email:cksdas@yahoo.co.in
MEDICAL NEGLIGENCE CASES - CIVIL
LAWS Page 15
(COMPENSATION TO DEPENDENT)
When a death
occurs the loss accruing to the dependent must be taken into account; the
balance of loss and gain to him must be ascertained; the position of each
dependent in each case may have to be considered separately.
(RULE OF LIMITATION)
Rosane vs. Senger, 112 Colo.
In the foreign
object situation it is impossible for plaintiff to sue within the limitation
and it is a recognized maxim that the law requires not impossibilities. A legal
right to damage for an injury is property and one can not be deprived of his
property without due process. There can be no due process unless the party
deprived has his day in court.
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration,
Email:cksdas@yahoo.co.in
MEDICAL NEGLIGENCE CASES - CIVIL
LAWS Page 16
(UNAUTHORIZED SURGICAL
PROCEDURE)
Whether
in an action for negligence/battery for performance of an unauthorized surgical
procedure, the doctor can put forth as defence the consent given for a
particular operative procedure, as consent for any additional or further
operative procedures performed in the interests of the patient. It was
considering a claim for battery by a patient who underwent a caesarean section.
During the course of caesarean section, the doctor found fibroid tumours in the
patient’s uterus. Being of the view that such tumours would be a danger in case
of future pregnancy, he performed a sterilization operation. The Court upheld
the claim for damages for battery. It held that sterilization could not be
justified under the principles of necessity, as there was no immediate threat
or danger to the patient’s health or life and it would not have been
unreasonable to postpone the operation to secure the patient’s consent. The
fact that the doctor found it convenient to perform the sterilization operation
without consent as the patient was already under general anaesthesia, was held
to be not a valid defence.
(MOTIVE IS IRRELEVANT IN TORTS)
Vishnu basudeo VS. T L H Smith Pearse, AIR 1949 Nag. 364
The
leading case of Allen vs. Flood lays down that as a general
rule, a bad motive is not an essential condition of liability for a civil wrong
except in cases like malicious prosecution, defamation and conspiracy. What has
ordinarily to be seen is the unlawful act. If it is so, then motive with which
it has done is of little significance. In this case, however, it has been held
that the act must be presumed to have been intended by the respondent to cause
mental and bodily distress to an applicant.
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration,
Email:cksdas@yahoo.co.in
MEDICAL NEGLIGENCE CASES - CIVIL
LAWS Page 17
TRAINEE DOCTOR
Jones vs. Manchester Corporation, 1952. 2 All ER 125
When it comes to trainees, the
courts make no allowance when assessing liability. In a number of cases courts
has rejected that junior doctors are inexperienced and mistakes can happen.
According to the courts, junior doctors are required to adhere to the same
standard of care as their senior colleagues; and also seek senior opinion when
required. At that stage the term “team negligence” was introduced.
(NEGLIGENCE - RES
IPSA LOQUITUR)
Clarke vs.
Warboys, The Times, March 18, 1952, CA
Where a
patient sustained a burn from a high frequency electrical current used for
electric coagulation of the blood.
(NO MEDICAL
PRACTITIONER IS AN INSURER)
Roe vs.
Ministry of Health, 1954(2) A.E.R. 151
Medical
Science has conferred great benefits on mankind, but these benefits are
attended by considerable risks. Every surgical operation is attended by risks.
We cannot take benefits without taking the risks. Every advance in technique is
also attended by risks. Doctors like the rest of us have to learn by
experience, and experience often teaches in a hard way. In all these case you
will find that the three questions, duty, causation, and remoteness run
continually into one another.
The job of the
Doctors should be approached from the stand point of the professional, that no
Medical Practitioner is an insurer for effecting a cure nor should Courts condemn
an honest exercise of judgment even though the other practitioner or specialist
disagrees with the professional diagnosis or treatment.
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration,
Email:cksdas@yahoo.co.in
MEDICAL NEGLIGENCE
CASES - CIVIL LAWS
Page 18
(RULE OF LIMITATION)
City of Miami Fla.
The
discovery doctrine is applicable in other than a foreign object case, where, the
plaintiff was undergoing x-ray therapy treatment for the removal of warts from
her heel. At the time of the treatment she was aware of nothing indicating any
radiation injury. The court held that the statute of limitations did not
commence to run until the plaintiff was first put on notice that she had
sustained an injury or had reason to believe that her right of action had
accrued.
(INHERENT POWERS OF COURT)
Savitri vs. Gobind Singh Rawat
Every court
must be deemed to possess by necessary intendment all such powers as are
necessary to make its orders effective. This principle is embodied in the maxim
“aliquid conceditur, conceditur ed id
since quo res ipsa isse non potest” (where anything is conceded, there is
conceded also anything without which the thing itself cannot exist) (Vide Earl
Jowitt’s Dictionary of English law, 1959 Edn., P. 1797). Whenever anything is
required to be done by law and it is found impossible to do that thing unless
something not authorised in express be also done then something else will be
supplied by necessary intendment. Such a construction though it may not always
be admissible in the present case however would advance the object of the legislation
under consideration. A contrary view is likely to result in grave hardship to
the applicant, who may have no means to subsist until the final order is
passed. There is no room for the apprehension that the recognition of such
implied power would lead to the passing of interim orders in a large number of
cases where the liability to pay maintenance may not exist. It is quite
possible that such contingency may arise in a few cases but the prejudice
caused thereby to the person against whom it is made is minimal as it can be
set right quickly after hearing both the parties.
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration,
Email:cksdas@yahoo.co.in
MEDICAL NEGLIGENCE CASES - CIVIL
LAWS Page 19
(LEGISLATIVE COMPETENCE)
L.Chandra Kumar vs.
Union of India
The
constitutional provisions vest Parliament and the State Legislatures, as the
case may be, with powers to divest the traditional courts of a considerable
portion of their judicial work. It was observed that the Parliament and the
State Legislatures possess legislative competence to effect changes in the
original jurisdiction of the Supreme Court and High Court apart from the
authorization that flows from Article 323-A and 323-B in terms of Entries 77,
78, 79 and 95 of List I so far as the Parliament is concerned and in terms of
Entry 65 of List II and Entry 46 of List III so far as the State Legislatures
are concerned. Power of judicial review being the basic structure of the
Constitution cannot be taken away.
(LOGICAL
APPROACH)
Penney vs. East Kent
Health Authority,
Three
women developed cervical cancer after a negative screening test. Even though
the claimant’s slides showed abnormal cells, they were labeled as normal. The
defence put forth by health authority was that abnormal cells are differently
interpreted and this should be decided according to the Bolam test. The trial
judge and the Court of Appeal agreed that the “logical” act by a reasonable
person is to label these slides as borderline so Bolitho’s test was preferred
over Bolam’s test.
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration,
Email:cksdas@yahoo.co.in
MEDICAL NEGLIGENCE CASES - CIVIL
LAWS Page 20
(DIFFERENCES OF OPINION)
Hunter
vs. Hanley,1955.
SLT 213
In any
profession, especially in surgery, genuine differences of opinion may arise. It
can be found that both sides of debate advance medical reasons for their
respective judgment. Also, if deviation from accepted clinical practice is
considered to be negligence; this might reflect badly on the advances in all
the surgical fields; this suggests that clinicians will not be able to apply an
original technique or surgical procedure without facing suspension and a case
of negligence. Lord Clyde said that “such thing could be disastrous and
severely affect the progress in medical science”
RIGHT TO EQUALITY (ARTICLE 14)
State
of West Bengal
Tested in the
light of these considerations, I am of opinion that the whole of the West
Bengal Special Courts Act of 1950 offends the provisions of Article 14 and is
therefore, bad. When the froth and the foam of discussion is cleared away and
learned dialectics placed on one side, we reach at last the human element which
to my mind is the most important of all. We find men accused of heinous crimes
called upon to answer for their lives and liberties. We find them picked out
from their fellows, and however much the new procedure may give them a few
crumbs of advantage, in the bulk they are deprived of substantial and valuable
privileges of defence which others, similarly charged, are able to claim. It
matters not to me, nor indeed to them and their families and their friends,
whether this be done in good faith, whether it be done for the convenience of
government, whether the process can be scientifically classified and labelled
or whether it is an experiment in speedier trials made for the good of society
at large. It matters not how lofty and laudable the motives are. The question
with which I charge myself is, can fair-minded, reasonable, unbiased and
resolute men, who are not swayed by emotion or prejudice, regard this with
equanimity and call it reasonable, just and fair, regard it as that equal
treatment and protection in the defence of liberties which is expected of a
sovereign democratic republic in the conditions which obtain in India today? I
have but one answer to that. On that short and simple ground I would decide
this case and hold the Act bad.
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration,
Email:cksdas@yahoo.co.in
MEDICAL NEGLIGENCE CASES - CIVIL
LAWS Page 21
(NEGLIGENCE - RES IPSA LOQUITUR)
Crits and Crits
vs. Sylvester, [1956]
O.R. 132 affd. [1956] S.C.R. 991 (Supreme Court of Canada
The legal principles bearing upon the
degree of care and skill which may be expected of physicians or surgeons are
well settled but the difficulty arises in applying them to particular
circumstances. Every medical practitioner must bring to his task a reasonable
degree of skill and knowledge and must exercise a reasonable degree of care. He
is bound to exercise that degree of care and skill which could reasonably be
expected of a normal, prudent practitioner of the same experience and standing,
and if he holds himself out as a specialist, a higher degree of skill is
required of him than of one who does not profess to be so qualified by special
training and ability. I do not believe that that standard of care has been more
clearly or succinctly stated than by Lord Hewart C.J. in R. vs. Bateman (1925), 41 T.L.R. 557 at
p. 559.
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration,
Email:cksdas@yahoo.co.in
MEDICAL NEGLIGENCE CASES - CIVIL
LAWS Page 22
(RULE OF LIMITATION)
Ayers vs. Morgan (Pennsylvania
A surgeon had left a sponge in the patient’s body
when he performed an operation. It was held that the statute of limitation did
not begin to run until years later when the presence of the sponge in the
patient’s body was discovered.
Statutes of limitations must be read in the
light of this provision “All courts shall be open; and every man for an injury done him in his lands, goods,
person or reputation shall have remedy by due course of law”, for the running
of time is not the only test of validity of such statutes. They are desirable
in that they prevent oppression by forbidding plaintiffs to litigate stale
claims and thus compel defense at a time when such defense is no longer
practicable and sometimes even impossible. Nevertheless, the restrictions
imposed may not be so arbitrary as to preclude a reasonable opportunity for one
who has been harmed to make his claim. If the legislature were permitted absolute
discretion it would not be merely regulating the remedy but would be
abolishing it ... Although
courts will not inquire into the wisdom of a statute, nevertheless, they do
have power to declare a statute unconstitutional as applied to a given case,
or, alternatively, to interpret the statute so as to include an essential
requirement which would make its application constitutional ...This is not judicial legislation
but is instead constitutional interpretation for without it the statute of
limitations, as applied to the facts of this case, would be unconstitutional.
(DOCTOR
IS NOT A GUARANTOR)
Cardin vs. La Cite de Montreal [1961]
S.C.R. 655 (Supreme Court of Canada
Certainly, doctors should not be held responsible for
unforeseeable accidents which may occur in the normal course of the exercise of
their profession. Cases necessarily occur in which, in spite of exercising the
greatest caution, accidents supervene and for which nobody can be held
responsible. The doctor is not a guarantor of the operation which he performs
or the attention he gives. If he displays normal knowledge, if he gives the
medical care which a competent doctor would give under identical conditions, if
he prepares his patient before operation according to the rules of the art, it
is difficult to sue him in damages, if by chance an accident occurs. Perfection
is a standard required by law no more for a doctor than for other professional
men, lawyers, engineers, architects, etc. Accidents, imponderables, what is
foreseeable and what is not, must necessarily be taken into account.
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration,
Email:cksdas@yahoo.co.in
MEDICAL NEGLIGENCE CASES - CIVIL
LAWS Page 23
(HOUSEWIFE MAKES CONTRIBUTION)
Gobald Motor Service Ltd, Allahabad
Loss of wife
to a husband may always be truly compensated by way of mandatory compensation.
How one would do it has been baffling the court for a long time. For
compensating a husband for loss of his wife, therefore, courts consider the
loss of income to the family. It may not be difficult to do when she had been
earning. Even otherwise a wife’s contribution to the family in terms of money
can always be worked out. Every housewife makes contribution to his family. It
is capable of being measured on monetary terms although emotional aspect of it
cannot be. It depends upon her educational qualification, her own upbringing,
status, husband's income, etc.
(TEST OF REASONABLE FORESEEABILITY)
Overseas Tank Ship Ltd. vs. Morts Dock and Engineering Co. (The Wagon
Mound case), (1963) AC 388: WLR 126
It is the
foresight of the reasonable man which alone can determine responsibility. The re. Polemis rule by substituting
‘direct’ for ‘reasonable foreseeable’ consequence leads to a conclusion equally
illogical and unjust. In cases of negligence foresee ability is the criterion
not only for the existence of a duty of care but also for remoteness of
damages.
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration,
Email:cksdas@yahoo.co.in
MEDICAL NEGLIGENCE CASES - CIVIL
LAWS Page 24
(DISCOVERY RULE – NON APPLICATION)
Roybal vs. White, 383 P.2d 250 (N.M. 1963).
The
plaintiff sought damages for malpractice arising out of an operation performed
upon her January 14, 1952, by the defendant doctor. He allegedly left a sponge
in the plaintiff’s abdominal cavity which resulted in surgery July 24, 1961. The
supreme court said New Mexico New Mexico New Mexico
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration,
Email:cksdas@yahoo.co.in
MEDICAL NEGLIGENCE CASES - CIVIL
LAWS Page 25
(REASONABLE RELIANCE)
Hedley
Byrne & Co. Ltd. vs. Heller &
Partners Ltd. [1964] AC 465
Where a person
is so placed that others could reasonably rely upon his judgment or his skill
or upon his ability to make careful inquiry, and a person takes it upon himself
to give information or advice to, or allows his information or advice to be
passed on to, another person who, as he knows or should know, will place
reliance upon it, then a duty of care will arise.
(NEGLIGENCE - RES
IPSA LOQUITUR)
Brazier
vs. Ministry of Defence (1965) 1 Ll. Law Rep. 26
When a needle
broke in the patient’s buttock while he was being given an injection.
(NEGLIGENCE - RES IPSA LOQUITUR)
Martel vs.
Hotel-Dieu St-Vallier,[1969] S.C.R. 745 (Supreme Court of Canada
The only point to be considered, therefore, is whether
the evidence was sufficient to support the conclusion that, in all probability,
what happened would not have occurred, in the absence of fault. I use the words
“in all probability”, because it is clear that when require a degree of
certainty beyond the standard used in civil cases, i.e., reasonable
probability. We are not dealing here with the certainty beyond reasonable doubt
which is required only in criminal matters. Much less, may we require
mathematical certainty, a demonstration excluding all other probabilities.
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration,
Email:cksdas@yahoo.co.in
MEDICAL NEGLIGENCE CASES - CIVIL
LAWS Page 26
(LACK
OF PROPER CARE)
Dr. Laxman Balkrishna Joshi vs. Dr.Trimbak Bapu Godbole and Anr.
AIR1969 SC 128
A patient had suffered from fracture of the
femur. The accused doctor while putting the leg in plaster used manual traction
and used excessive force for this purpose, with the help of three men, although
such traction is never done under morphia alone but done under proper general
anaesthesia. This gave a tremendous shock causing the death of the boy. On
these facts the doctor was liable to pay damages to the parents of the boy.
(MULTIPLIER METHOD)
Mallett vs. Mc Mongle (1969 (2) All ER 178)
The
starting point in any estimate of the amount of the ‘dependency’ is the annual
value of the material benefits provided for the dependants out of the earnings
of the deceased at the date of his death. But there are many factors which
might have led to variations up or down in the future. His earnings might have
increased and with them the amount provided by him for his dependants. They
might have diminished with a recession in trade or he might have had spells of
unemployment. As his children grew up and became independent the proportion of
his earnings spent on his dependants would have been likely to fall. But in
considering the effect to be given in the award of damages to possible
variations in the dependency there are two factors to be borne in mind. The
first is that the more remote in the future is the anticipated change the less
confidence there can be in the chances of its occurring and the smaller the
allowance to be made for it in the assessment. The second is that as a matter
of the arithmetic of the calculation of present value, the later the change
takes place the less will be its effect upon the total award of damages. Thus
at interest rates of 4- 1/2% the present value of an annuity for 20 years of
which the first ten years are at $ 100 per annum and the second ten years at $
200 per annum, is about 12 year’s purchase of the arithmetical average annuity
of $ 150 per annum, whereas if the first ten years are at $200 per annum and
the second ten years at $ 100 per annum the present value is about 14 year’s
purchase of the arithmetical mean of $ 150 per annum. If therefore the chances
of variations in the ‘dependency’ are to be reflected in the multiplicand of
which the year’s purchase is the multiplier, variations in the dependency which
are not expected to take place until after ten years should have only a
relatively small effect in increasing or diminishing the ‘dependency’ used for
the purpose of assessing the damages.
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration, Email:cksdas@yahoo.co.in
MEDICAL NEGLIGENCE CASES - CIVIL
LAWS Page 27
(BREACH OF DUTY)
McGhee vs. National Coal Board, 1972. 3 All ER 1008, 1 WLR 1
The
House of Lords held that where a breach of duty has a material effect on the
likelihood of injury then the subsequent injury will be said to have been
caused by the breach. McGhee, who was employed to clean out brick kilns, sued
his employer for negligence for failing to provide the proper washing
facilities to prevent the outbreak of dermatitis from the accumulation of coal
dust on his skin. The issue before the House of Lords was whether the failure
to provide the washing facilities had caused the rash. Lord Reid stated: “The
medical evidence is to the effect that the fact that the man had to cycle home
caked with grime and sweat added materially to the risk”.
(REASONABLE CARE)
Donald
McCormick vs. Gaston Marcotte, [1972]
S.C.R. 18 (Supreme Court of Canada
The test of reasonable care applies in medical
malpractice cases as in other cases where fault is alleged. The medical man
must possess and use, that reasonable degree of learning and skill ordinarily
possessed by practitioners in similar communities in similar cases. Whether or
not such test has been met depends, of course, upon the particular
circumstances of each case.
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration, Email:cksdas@yahoo.co.in
MEDICAL NEGLIGENCE CASES - CIVIL
LAWS Page 28
(NEGLIGENCE - RES IPSA LOQUITUR)
Frank Hellenius and Rock Leclerc vs. Thomas Lees[1972]
S.C.R. 165 (Supreme Court of Canada
It was contended on behalf of the
appellants that this was a case of res
ipsa loquitur and that on
this ground there was an initial burden upon the respondent to disprove negligence.
I should say at the outset that in my opinion this submission cannot be
sustained on the facts of the present case. The so-called rule embodied in the
Latin phrase res ipsa loquitur is nothing more than a rule of
evidence and states no principle of law. The rule is conveniently and
authoritatively stated in the judgment of Erle C.J., in Scott vs. London & St. Katherine Docks Co. (1865) 3 H. & C. 596 at 601,
159 E.R. 665
(NEGLIGENCE - RES
IPSA LOQUITUR)
Cavan vs. Wilcox
(1973) 44 D.L.R. (3d) 42
Gangrene developed in the claimant’s arm
following an intramuscular injection
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration,
Email:cksdas@yahoo.co.in
MEDICAL NEGLIGENCE CASES - CIVIL
LAWS Page 29
(MOTIVE IS IRRELEVANT IN TORTS)
Town Area Committee vs. Prabhu Dayal, AIR 1975 All. 132
The plaintiff can get compensation only if
he proves to have suffered injury because of an illegal act of the defendant
and not otherwise. Malice does not enter the scene at all. A legal act though
motivated by malice, will not make the actor liable to pay damages. Mere malice
cannot disentitle a person from taking recourse to law for getting the wrong
undone. It is, therefore, not necessary to investigate whether the action was
motivated by malice or not.
(NEGLIGENCE - RES
IPSA LOQUITUR)
Eady vs. Tenderenda, [1975] 2
S.C.R. 599 (Supreme Court of Canada
The plaintiff,
suffered from repeated and severe earaches and referred to the respondent,
Dr. T. Tenderenda, who was a specialist in ear, nose and throat surgery.
The respondent carried on clinical tests which convinced him that the appellant
suffered from exacerbation of the left ear amounting to infection and extending
into the mastoid. The x-ray showed that the bone was mostly sclerotic so that
they could not be detected from the x-ray. Dr. Tenderenda advised the
appellant that she should have an operation for this mastoid condition and
warned her of the dangers such as meningitis, encephalitis, etc., which could
be brought on by a failure to treat the condition surgically. The respondent
carried out the operation on the appellant and the appellant had suffered a
facial paralysis as a result of the operation and within a very short time he
called in an Otological surgeon, who examined the appellant and determined that
the ear would have to be reopened in order to determine the cause of the facial
paralysis. This operation, carried out by Otological surgeon, with the
respondent present. At that operation, it is discovered the presence of two
small white bone chips which had been pressing against the facial nerve. Otological
surgeon removed those bone chips. The plaintiff has since that time partially
recovered from the facial paralysis.
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration,
Email:cksdas@yahoo.co.in
MEDICAL NEGLIGENCE CASES - CIVIL
LAWS Page 30
The Respondent, in using the surgical loupe and hammer
and chisel method, realised that vision using microscopic surgery was much
better than the loupe which he would have to use and should therefore have
exercised a greater degree of care in making certain that the bone chips found
in the wound had been removed. In failing in his search of the operative site
to see such harmful chips in the area of the
facial nerve the respondent did not accord to his patient the reasonable degree
of care required. Knowing the probability that a radical mastoidectomy was
necessary after examination of the patient and x-rays; knowing the possibility
of complications following this type of surgery by performing this surgery by
using the chisel and hammer method, he did not take due care in ensuring that
all bone chips were removed from the operative area.
The respondent Dr. Tenderenda knowing
that he could only operate by means of the surgical loupe and hammer and chisel
and knowing that a radical mastoidectomy was going to be required, should have
take upon himself the burden of very great care in scrutinizing the site with
his limited means of vision. Dr. Tenderenda’s negligence was not from
entering into the operation at all but from proceeding with the operation using
the technique at which he was skilled but exercising less than all of the skill
of which he was capable. Otological surgeon testified that it was very difficult to see the bone chips
when he was dealing with a white bone, with a white nerve and with a white bone
chip even he was working with the aid of a microscope. Dr. Tenderenda had
realized that vision with a microscope was much better than with the surgical
loupe which he employed and therefore, Dr. Tenderenda should have
exercised a greater degree of care in making certain there was nothing
left in the wound which could have the deleterious effect that these bone chips
did have.
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration,
Email:cksdas@yahoo.co.in
MEDICAL NEGLIGENCE CASES - CIVIL
LAWS Page 31
(JUDICIAL ADMINISTRATION & LEGISLATIVE COMPETENCE)
Re: The Special Courts Bill, 1978 :
The
Constitution has thus made ample and effective provision for the establishment
of a strong, independent and impartial judicial administration in the country,
with the necessary complement of civil and criminal courts. It is not
permissible for Parliament or a State Legislature to ignore or bypass that
Scheme of the Constitution by providing for the establishment of a civil or criminal
court parallel to a High Court in a State, or by way of an additional or extra
or a second High Court, or a court other than a court subordinate to the High
Court. Any such attempt would be unconstitutional and will strike at the
independence of the judiciary which has so nobly been enshrined in the
Constitution and so carefully nursed over the years.
(NEGLIGENCE - RES
IPSA LOQUITUR)
Rietz vs.
Bruser (No.2) (1979) 1 W.W.R. 31, Man QB
The defendant
failed to diagnose a known complication of surgery on the patient’s hand for
Paget’s disease.
(PROFESSIONAL NEGLIGENCE)
Albrighton vs. RPA
Hospital
A patient had
been born with a spinal problem had her spinal cord totally severed leaving her
a paraplegic. Major issue was the relationship between the hospital and the
doctors, that the hospital was not liable nor vicariously liable but that the
doctors who performed the operation were negligent.
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration, Email:cksdas@yahoo.co.in
MEDICAL NEGLIGENCE CASES - CIVIL
LAWS Page 32
(EXPERT EVIDENCE)
Reibl vs. Hughes, (30) (1980) 114 DLR (3d) (Supreme
Court of Canada
To allow expert medical evidence to determine what risks are
material and, hence, should be disclosed and, correlatively, what risks are not
material is to hand over to the medical profession the entire question of the
scope of the duty of disclosure, including the question whether there has been
a breach of that duty. Expert medical evidence is, of course, relevant to
findings as to the risks that reside in or are a result of recommended surgery or
other treatment. It will also have a bearing on their materiality but this is
not a question that is to be concluded on the basis of the expert medical
evidence alone. The issue under consideration is a different issue from that
involved where the question is whether the doctor carried out his professional
activities by applicable professional standards. What is under consideration
here is the patient’s right to know what risks are involved in undergoing or
foregoing certain surgery or other treatment.
(INHERENT POWERS OF COURT)
Arabind Das vs. State
of Assam
We are of firm
opinion that where a statute gives a power, such power implies that all
legitimate steps may be taken to exercise that power even though these steps
may not be clearly spelt in the statute. Where the rule making authority gives
power to certain authority to do anything of public character, such authority
should get the power to take intermediate steps in order to give effect to the
exercise of the power in its final step, otherwise the ultimate power would
become illusory, ridiculous and inoperative which could not be the intention of
the rule making authority.
In determining
whether a power claimed by the statutory authority can be held to be incidental
or ancillary to the powers expressly conferred by the statute, the court must
not only see whether the power may be derived by reasonable implication from
the provisions of the statute, but also whether such powers are necessary for
carrying out the purpose of the provisions of the statute which confers power
on the authority in its exercise of such power.
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration,
Email:cksdas@yahoo.co.in
MEDICAL NEGLIGENCE CASES - CIVIL
LAWS Page 33
(STANDARD OF CARE)
Whitehouse vs. Jordan
The claimant was a baby
who suffered severe brain damage after a difficult birth. The defendant, a
senior hospital registrar, was
supervising delivery in a high-risk pregnancy. After the mother had been in labour for 22 hours, the defendant used forceps to assist the delivery. The Lords found that the
doctor's standard of care did not fall below that of a reasonable doctor in the
circumstances and so the baby was awarded no compensation.
The true
position is that an error of judgment may, or may not, be negligent; it depends
on the nature of the error. If it is one that would not have been made by a
reasonably competent professional man of profession to have the standard and
type of skill that the defendant holds himself out as having, and acting with
ordinary care, then it is negligence. If, on the other hand, it is an error
that such a man, acting with ordinary care, might have made, then it is not
negligence.
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration,
Email:cksdas@yahoo.co.in
MEDICAL NEGLIGENCE CASES - CIVIL
LAWS Page 34
(NEGLIGENCE - RES
IPSA LOQUITUR)
Hajgato
vs. London
Where an
infection following surgery in a well-staffed and modern hospital remained
undiagnosed until the patient sustained crippling injury.
(NEGLIGENCE - RES
IPSA LOQUITUR)
Brown vs.
Merton, Sutton and Wandsworth Area Health Authority (1982) 1 All E.R. 650
Where a spinal
anaesthetic became contaminated with disinfectant as a result of the manner in
which it was stored causing paralysis to the patient.
(REASONABLE CARE –STERILIZATION)
F vs. R. (26) (1983) 33 SASR 189 (Australia
A woman
who had become pregnant after an unsuccessful tubal ligation brought an action in
negligence alleging failure by the medical practitioner to warn her of the
failure rate of the procedure. The failure rate was assessed at less than 1 per
cent for that particular form of sterilization. The Court refused to apply the
Bolam principle.
The ultimate question, however, is not whether the defendant’s
conduct accords with the practices of his profession or some part of it, but
whether it conforms to the standard of reasonable care demanded by the law.
That is a question for the court and the duty of deciding it cannot be
delegated to any profession or group in the community. The amount of
information or advice which a careful and responsible doctor would disclose
depended upon a complex of factors: the nature of the matter to be disclosed;
the nature of the treatment; the desire of the patient for information; the
temperament and health of the patient; and the general surrounding
circumstances.
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration,
Email:cksdas@yahoo.co.in
MEDICAL NEGLIGENCE CASES - CIVIL
LAWS Page 35
(TEST
OF REASONABILITY
Maynard vs. West Midlands Regional Health Authority [1985] 1 All ER 635
The patient presented with symptoms of tuberculosis. Instead of waiting for the results of the sputum
tests, the consultants carried out a mediastinoscopy to get a biopsy. The inherent risk of damage was to
the left laryngeal recurrent nerve, even if the operation was properly done. In
the event, only tuberculosis was confirmed. The patient suffered a paralysis of
the left vocal cord. The decision of the physician and the surgeon to proceed
was said by their expert peers to be reasonable in all the circumstances.
(FAILURE TO CONVEY INFORMATION)
Eyre vs. Measday
(1986) 1 ALL ER 488
The plaintiff and her husband decided that they
did not wish to have any more children. The plaintiff consulted the defendant
gynaecologist with a view to undergoing a sterilization operation. The
defendant explained to the couple the nature of the particular operation he
intended to perform, emphasising that it was irreversible. He stated that the
operation ‘must be regarded as a permanent procedure’ but he did not inform the
plaintiff that there was a small risk (less than 1%) of pregnancy occurring
following the operation. Consequently, both the plaintiff and her husband
believed that the result of the operation would be to render her absolutely
sterile and incapable of bearing further children. In 1979 the plaintiff became
pregnant and gave birth to a child. The plaintiff brought an action against the
defendant for damages.
The contract
undertaken by the defendant was to carry out a particular type of operation
rather than to render the plaintiff absolutely sterile. Furthermore, the
defendant’s representations to the plaintiff that the operation was ‘irreversible’
did not amount to an express guarantee that the operation was bound to achieve
its acknowledged object of sterilizing the plaintiff. On the facts, it was
clear that the representations meant no more than that the operative procedure
in question was incapable of being reversed.
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration,
Email:cksdas@yahoo.co.in
MEDICAL NEGLIGENCE CASES - CIVIL
LAWS Page 36
Where a doctor
contracted to carry out a particular operation on a patient and a particular
result was expected, the court would imply into the contract between the doctor
and the patient a term that the operation would be carried out with reasonable
care and skill, but would be slow to imply a term or unqualified collateral
warranty that the expected result would actually be achieved, since it was
probable that no responsible medical man would intend to give such a warranty.
On the facts, no intelligent lay bystander could have reasonably inferred that
the defendant was intending to give the plaintiff a guarantee that after the
operation she would be absolutely sterile and the fact that she believed that
this would be the result was irrelevant. The risk of pregnancy following such a
procedure to which the plaintiff was subjected is described as very small. It
is of the order of 2 to 6 in every 1000. There is no sterilization procedure
which is entirely without such a risk.
In the absence
of any express warranty, the court should be slow to imply against a medical
man an unqualified warranty as to the results of an intended operation, for the
very simple reason that, objectively speaking, it is most unlikely that a
responsible medical man would intend to give a warranty of this nature. Of
course, objectively speaking, it is likely that he would give a guarantee that
he would do what he had undertaken to do with reasonable care and skill; but it
is quite another matter to say that he has committed himself to the extent
suggested in the present case.
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration,
Email:cksdas@yahoo.co.in
MEDICAL NEGLIGENCE CASES - CIVIL
LAWS Page 37
(GUARANTEE OF 100% SUCCESS)
Thake vs. Morris,
[1986] 1 All ER 497 (CA)
A reasonable
man would have expected the defendant to exercise all the proper skill and care
of a surgeon in that specialty: he would not have expected the defendant to
give a guarantee of 100% success. Of all sciences medicine is one of the least
exact. In my view, a doctor cannot be objectively regarded as guaranteeing the
success of any operation or treatment unless he says as much in clear and
unequivocal terms.
(JUDICIAL REVIEW)
S. P. Sampath Kumar vs. Union of India
Judicial review is a fundamental aspect of the basic
structure of our constitution, it was held that a Tribunal or a Forum duly
constituted to deal with a category of cases to the exclusion of the ordinary
Courts must preserve the independence of the judiciary and should not give over
weightage to the role of non-judicial members constituting such forum.
(INTERPRETATION OF STATUTE)
Reserve Bank of India
Interpretation
must depend on the text and the context. They are the bases of interpretation.
One may well say if the text is the texture, context is what gives the colour.
Neither can be ignored. Both are important. That interpretation is best which
makes the textual interpretation match the contextual. A statute is best
interpreted when we know why it was enacted. With this knowledge, the statute
must be read, first as a whole and then section by section, clause by clause,
phrase by phrase and word by word. If a statute is looked at, in the context of
its enactment, with the glasses of the statute-maker, provided by such context,
its scheme, the sections, clauses, phrases and words may take colour and appear
different than when the statute is looked at without the glasses provided by
the context. With these glasses we must look at the Act as a whole and discover
what each section, each clause, each phrase and each word is meant and designed
to say as to fit into the scheme of the entire Act. No part of a statute and no
word of a statute can be construed in isolation. Statutes have to be construed
so that every word has a place and everything is in its place. It is by looking
at the definition as a whole in the setting of the entire Act and by reference
to what preceded the enactment.
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration,
Email:cksdas@yahoo.co.in
MEDICAL NEGLIGENCE CASES - CIVIL
LAWS Page 38
(ISSUE OF CAUSATION)
Hotson vs. East Berkshire Area Health Authority [1987] 2 All ER 909
The question was whether the cause of the injury was the fall
or the health authority’s negligence in delaying treatment, since if the fall
had caused the injury the negligence of the authority was irrelevant in regard
to the plaintiff’s disability. On the balance of probabilities, even correct
diagnosis and treatment would not have prevented the disability from occurring,
it followed that the plaintiff had failed on the issue of causation. It was
therefore irrelevant to consider the question of damages.
(DEVALUATION OF STANDARDS IN PROFESSIONAL ETHICS – NEGLIGENCE)
Dr.
T.T. Thomas vs. Smt. Elisa and Ors., I
(1987) ACC 445, AIR 1987 Ker 52 (Kerala High Court)
The second plaintiff’s husband was admitted
in the General Hospital
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration,
Email:cksdas@yahoo.co.in
MEDICAL NEGLIGENCE
CASES - CIVIL LAWS
Page 39
When a
surgeon or medical man advances a plea that the patient did not give his
consent for the surgery or the course of treatment advised by him, the burden
is on him to prove that the non-performance of the surgery or the
non-administration of the treatment was on account of the refusal of the
patient to give consent thereto. This is especially so in a case where the
patient is not alive to give evidence. A surgeon who failed to perform an
emergency operation must prove with satisfactory evidence that the patient
refused to undergo the operation, not only at the initial stage, but even after
the patient was informed about the dangerous consequences of not undergoing the
operation.
There
is almost unanimity in the evidence of witnesses that the position on
11-3-1974, when the patient was admitted in the Hospital, was different. All
the doctor witnesses examined in this case deposed in one voice that what
normally a surgeon would have done on 11-3-1974 when a patient like the
deceased was found to be suffering from perforated appendix was to subject him
to an emergency operation. The appellant, as D.W. 2, admitted that when he
examined the patient at 3.35 p. m. on 11-3-1974, he diagnosed the case as
“perforated appendix with general peritonitis”. D.W. 1, the other surgeon in
the General Hospital
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration,
Email:cksdas@yahoo.co.in
MEDICAL NEGLIGENCE CASES - CIVIL
LAWS Page 40
(BLOOD TRANSFUSION WITHOUT
CONSENT)
Malette vs. Shulman et al. 72 O.R. (2d) 417 (Ontario
Mrs.
Georgette Malette, was rushed, unconscious, by ambulance to the Hospital as she
met in an accident. Dr. David L. Shulman, examined and noticed that
she had severe head and face injuries and was bleeding profusely. The doctor
concluded that she was suffering from incipient shock by reason of blood loss,
and ordered that she be given intravenous glucose followed immediately by
Ringer’s Lactate as per the standard medical procedure and decided, if the
patient does not respond with significantly increased blood pressure,
transfusions of blood are then administered to carry essential oxygen to
tissues and to remove waste products and prevent damage to vital organs. But this
time, a nurse discovered a card in Mrs. Malette’s purse which identified her as
a Jehovah’s Witness and in which she requested, on the basis of her religious
convictions, that she be given no blood transfusions under any circumstances.
The card, which was not dated or witnessed, was printed in French and signed by
Mrs. Malette. Dr. Shulman was promptly advised of the existence of this card
and its contents. Mrs. Malette was next examined by a surgeon on duty in the
hospital. He also noticed that, to avoid irreversible shock, it was vital to
maintain her blood volume. Then Mrs. Malette’s condition deteriorated. Her
blood pressure dropped markedly, her respiration became increasingly
distressed, and her level of consciousness dropped. She continued to bleed
profusely and could be said to be critically ill. Based on these, Dr. Shulman
decided that Mrs. Malette’s
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration,
Email:cksdas@yahoo.co.in
MEDICAL NEGLIGENCE CASES - CIVIL
LAWS Page 41
condition
had deteriorated to the point that transfusions were necessary to replace her
lost blood and to preserve her life and health. He personally administered
transfusions to her, in spite of the Jehovah’s Witness card. Meanwhile, Mrs. Malette’s
daughter arrived at the hospital and strongly objected to her mother being
given blood. She signed a document specifically prohibiting blood transfusions
and a release of liability. Dr. Shulman refused to follow her instructions as
the blood transfusions were, in his judgment, medically necessary in this
potentially life‑threatening situation, he believed it his professional
responsibility as the doctor in charge to ensure that his patient received the
transfusions. After recovery Mrs. Malette brought action against Dr. Shulman,
the hospital, its Executive Director and four nurses, alleging, that the
administration of blood transfusions in the circumstances of her case
constituted negligence and assault and battery and subjected her to religious discrimination.
The right of a
person to control his or her own body is a concept that has long been
recognized at common law. The tort of battery has traditionally protected the
interest in bodily security from unwanted physical interference. Basically, any
intentional nonconsensual touching which is harmful or offensive to a person’s
reasonable sense of dignity is actionable. Of course, a person may choose to
waive this protection and consent to the intentional invasion of this interest,
in which case an action for battery will not be maintainable. No special
exceptions are made for medical care, other than in emergency situations, and
the general rules governing actions for battery are applicable to the doctor‑patient
relationship. Thus, as a matter of common law, a medical intervention in which
a doctor touches the body of a patient would constitute a battery if the
patient did not consent to the intervention.
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration,
Email:cksdas@yahoo.co.in
MEDICAL NEGLIGENCE CASES - CIVIL
LAWS Page 42
Patients have the
decisive role in the medical decision‑making process. Their right of self‑determination
is recognized and protected by the law.
The doctrine of informed consent has
developed in the law as the primary means of protecting a patient’s right to
control his or her medical treatment. Under the doctrine, no medical procedure
may be undertaken without the patient’s consent obtained after the patient has
been provided with sufficient information to evaluate the risks and benefits of
the proposed treatment and other available options. The doctrine presupposes
the patient’s capacity to make a subjective treatment decision based on her
understanding of the necessary medical facts provided by the doctor and on her
assessment of her own personal circumstances. A doctor who performs a medical
procedure without having first furnished the patient with the information
needed to obtain an informed consent will have infringed the patient’s right to
control the course of her medical care, and will be liable in battery even
though the procedure was performed with a high degree of skill and actually
benefited the patient.
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration,
Email:cksdas@yahoo.co.in
MEDICAL NEGLIGENCE CASES - CIVIL
LAWS Page 43
The right of self‑determination
which underlies the doctrine of informed consent also obviously encompasses the
right to refuse medical treatment. A competent adult is generally entitled to
reject a specific treatment or all treatment, or to select an alternate form of
treatment, even if the decision may entail risks as serious as death and may
appear mistaken in the eyes of the medical profession or of the community.
Regardless of the doctor’s opinion, it is the patient who has the final say on
whether to undergo the treatment. The patient is free to decide, for instance,
not to be operated on or not to undergo therapy or, by the same token, not to
have a blood transfusion. If a doctor were to proceed in the face of a decision
to reject the treatment, he would be civilly liable for his unauthorized
conduct notwithstanding his justifiable belief that what he did was necessary
to preserve the patient’s life or health. The doctrine of informed consent is
plainly intended to ensure the freedom of individuals to make choices
concerning their medical care. For this freedom to be meaningful, people must
have the right to make choices that accord with their own values regardless of
how unwise or foolish those choices may appear to others.
(DERELICTION OF DUTY & PARENTS OF CHILD
“CONSUMER”)
Spring Medows Hospital & Another vs. Harjol Ahluwalia thr’
K.S. Ahluwalia & Another (1988) 4
SCC 39
A minor child was admitted by his parents to a
nursing home as he was suffering fever. The doctor diagnosed typhoid and gave
an injection Lariago which was administered by the nurse to the patient who
immediately collapsed. The doctor was examined and testified that the child
suffered a cardiac arrest on account of the medicine having being injected
which led to brain damage. The National Commission held that the cause of
cardiac arrest was intravenous injection of Lariago of such a high dose. The
doctor was negligent in performing his duty because instead of administering
the injection himself he permitted the nurse to give the injection. There was
clear dereliction of duty on the part of the nurse who was not even a qualified
nurse and was not registered with any nursing council of any State. Both the
doctor and nurse and the hospital were found liable and awarded compensation to
the parents.
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration,
Email:cksdas@yahoo.co.in
MEDICAL NEGLIGENCE CASES - CIVIL
LAWS Page 44
The definition
clause being wide enough to include not only the person who hires the services
but also the beneficiary of such services which beneficiary is other than the
person who hires the services, the conclusion is irresistible that both the
parents of the child as well as the child would be consumer within the meaning
of Section 2(1)(d)(ii) of the Act and as such can claim compensation under the
Act. If the parents of the child having hired the services of the hospital, are
consumer within the meaning of Section 2(1)(d)(ii) and the child also is
consumer being a beneficiary of such services hired by his parents in the
inclusive definition in Section 2(1)(d) of the Act, the Commission will be
fully justified in awarding compensation to both of them for the injury each
one of them has sustained.
In the case in
hand the Commission has awarded compensation in favour of the minor child
taking into account the cost of equipments and the recurring expenses that
would be necessary for the said minor child who is merely having a vegetative
life. Te compensation awarded in favour of the parents of the minor child is
for their acute mental agony and the life long care and attention which the
parents would have to bestow on the minor child. Accordingly, the Commission in
our considered opinion rightly awarded compensation in favour of the parents in
addition to the compensation in favour of the minor child.
The mental
agony of the parents will not be dismissed in any manner merely seeing the only
child living a vegetative state on account of negligence of the hospital
authorities on a hospital bed. The agony of the parents would remain so long as
they remain alive and the so-called humanitarian approach of the hospital
authorities – like free treatment - in no way can be considered to be a factor
in denying the compensation for mental agony suffered by the parents.
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration,
Email:cksdas@yahoo.co.in
MEDICAL NEGLIGENCE CASES - CIVIL
LAWS Page 45
(FREE EYE CAMP)
A.S.
Mittal & Ors vs. State Of U.P. &
Ors; 1989 AIR 1570, 1989 SCR (3) 241; 1989 SCC (3) 223; JT 1989 (2) 419; 1989 SCALE
(1)1535
The Lions Club, Khurja in Uttar Pradesh arranged
and conducted, as part of its social service programme, an “Eye-Camp” intended
to extend facilities of expert Ophthalmic surgical services to the residents of
the town. Dr. R.M. Sahay and his team of doctors and para-medical staff,
examined about 122 patients. One hundred and eight patients were operated upon,
88 of them for Cataract which, with the modern advances in Ophthalmic Surgery,
is considered a relatively minor and low-risk surgery. But the whole programme
at Khurja, however laudable the intentions with which it might have been
launched, proved a disastrous medical misadventure for the patients. The
operated-eyes of the patients were irreversibly damaged, owing to a
post-operative infection of the Intra Ocular Cavities of the operated eyes. The
doctors present at the Camp administered anti- biotic medication, both oral and
local, for the infection. But the operated eyes had been damaged completely.
Similar mishap, but on lesser scale affecting some 15 patients, repeated itself
at Moradabad
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration,
Email:cksdas@yahoo.co.in
MEDICAL NEGLIGENCE CASES - CIVIL
LAWS Page 46
The explanation of the doctors appears to be that
the infection occurred despite all precaution. Though it is not said so in so
many words, the drift of the explanation is that the saline, used to irrigate
the eyes during surgery to maintain turgidity of the operational surface, which
was purchased from a reputed manufacturer might be the source of the
contamination. If that be so, the question of the liability of the manufacturer
for what is called “product- liability” and the further question whether in
such cases of mass-use, a pre-test for safety and purity of the article was
necessary and whether failure to do so would be actionable. These questions are
necessarily to be answered on evidence.
Modern
techniques in ophthalmic surgery render cataract a minor operation. A cataract
affected eye when properly operated is expected to become normal. The operation
is meant to remove an obstruction to vision and restoration of normal eyesight.
This implies that the eyes of patients selected for operation has the potential
for restoration of sight. In the instant case, they have become totally blind
in the operated eyes. A mistake by a medical practitioner which no reasonably
competent and careful practitioner would have committed is a negligent one. One
of the questions that might arise in the appropriate forum is whether the
Doctors judged by the circumstances in which they were working made a mistake
and if so whether such a mistake was negligent.
Law recognises
the dangers which are inherent in surgical operation. Mistakes will occur on
occasions despite the exercise of reasonable skill and care. The necessity of
the highest standards of aseptic sterile conditions at places where ophthalmic
surgery or any surgery is conducted cannot be overemphasized. It is not merely
on the formulation of the theoretical standards but really on the professional
commitments with which the prescriptions are implemented that the ultimate
result rests.
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration,
Email:cksdas@yahoo.co.in
MEDICAL NEGLIGENCE CASES - CIVIL
LAWS Page 47
Staff: The
operations in the camp should only be performed by qualified, experienced
Ophthalmic Surgeons registered with Medical Council of India or any State
Medical Council. The camp should not be used as a training ground for
post-graduate students, and operative work should not be entrusted to post-
graduate students. There should be a pathologist to examine Urine, blood, sugar
etc. It is preferable to have a Dentist to check the teeth for sepsis and a
Physician for general medical check-up.
Medication: (a)
All medicines to be used should be of standard quality duly verified by the
doctor in-charge of the camp.
The necessity
of maintenance of the highest standards of a septic and sterile conditions at
places where Ophthalmic surgery or any surgery is conducted cannot be
over-emphasised. It is not merely on the formulation of the theoretical
standards but really on the professional commitment with which the
prescriptions are implemented that the ultimate result rests. The maintenance
of sterile, aseptic conditions in hospitals to prevent cross-infections should
be ordinary, routine and minimal incidents of maintenance of hospitals. Purity
of the drugs and medicines intended for use would have to be ensued by prior
tests and inspection. A ruthless adherence to the virtue of method and laying
down practical procedures in the minutes of detail and by exacting-not merely
expecting strict adherence to these procedures.
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration,
Email:cksdas@yahoo.co.in
MEDICAL NEGLIGENCE CASES - CIVIL
LAWS Page 48
(NEGLIGENCE - RES
IPSA LOQUITUR)
Bull vs. Devon Area Health Authority (1989), (1993) 4 Med. L.R.
117 at 131.
Where there
was a delay of 50 minutes in obtaining expert obstetric assistance at the birth
of twins when the medical evidence was that at the most no more than 20 minutes
should elapse between the birth of the first and the second twin.
(NEGLIGENCE - ANAESTHETIST & SURGEON)
Pinnamaneni
Narasimha Rao vs. Gundavarapu Jayaprakasu, AIR 1990 AP-HC 207; I (1990) ACC 468; 1990 ACJ 350
The plaintiff was admitted in the Government General Hospital,
Guntur for a minor ailment - chronic nasal discharge and the second defendant
Dr. P. Narasimha Rao, E.N.T. Surgeon who performed the tonsillectomy operation.
The third defendant Dr. S. Shankar Rao was the Chief Anaesthetist of the
Hospital. The first defendant is the Government of Andhra Pradesh represented
by the District Collector, Guntur
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration,
Email:cksdas@yahoo.co.in
MEDICAL NEGLIGENCE CASES - CIVIL
LAWS Page 49
One glaring feature of this
case clearly suggestive of the recklessness of the Anaesthetist was his failure
to maintain any record of either the condition of the patient or the level of
anaesthesia and what anaesthetics were administered. The names of drugs reeled
out in his evidence and the dosages were all based on his memory. The evidence
of the anaesthetist that the pulse returned to normalcy after the resuscitation
and, therefore, he asked the Surgeon to proceed with the operation is clearly
an after thought. If cardiac arrest has occurred, in any case where cardiac
arrest is not deliberately produced, then it is better to postpone the
operation. Tonsillectomy is an elective operation. In the sequence of the
events that occurred, viz., shallow respiration, respiratory arrest, pulse
abnormality and immediate external compression of the chest, the inherent
probability of cerebral anoxia is present. Prudence may dictate that following
the above sequence of events cerebral anoxia be expected by the doctors in
charge of the patient.
Adjudged
in the light of the legal principles referred and from the evidence available
on record, it is clear that both the Surgeon and the Anaesthetist have failed
to exercise reasonable care. There has been breach of duty on the part of the
Anaesthetist by reason of his failure, an act per se negligence in the
circumstances, to administer respiratory resuscitation by oxygenating the
patient with a mask or bag. He exposed the plaintiff to the room temperature
for about three minutes and this coupled with his failure to administer fresh
breathes of oxygen before the tube was removed from the mouth of the plaintiff
had resulted in respiratory arrest: these are foreseeable factors. There is
proximate connection between the Anaesthetist’s conduct and the resultant
injury - cerebral anoxia. The learned
trial judge very rightly recorded the finding after evaluating the evidence
that: “The endotracheal tube that was inserted into the trachea of the
plaintiff was removed by the third defendant for no valid reasons and that too
without taking the minimum precaution of giving a few breaths of pure oxygen to
the patient before extubation. There was avoidable delay in inserting the tube
again for the second time to give oxygen to the plaintiff when the respiratory
arrest occurred..... the respiratory arrest that ultimately led to cerebral
anoxia was the result of the negligence on the part of the third defendant in
adopting faulty techniques of induction and maintenance of anaesthesia.”
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration,
Email:cksdas@yahoo.co.in
MEDICAL NEGLIGENCE CASES - CIVIL
LAWS Page 50
Dr.
Narasimha Rao, the second defendant failed in his duty to conform to the
standard of conduct expected of an ordinary surgeon although he is an
experienced specialist. Without bothering to verify the state of plaintiff he
started and completed the operation despite the fact that tonsillectomy was an
elective operation. Had he not proceeded with the operation there was every
possibility of the plaintiff being saved from the brain damage sustained by
him. Both the defendants 2 and 3 are guilty of negligence. Despite being
specialists in their respective fields defendants 2 and 3 have failed to
exercise that much of care and caution which an ordinary practitioner of their
standard would have exercised in similar circumstances. As the injury sustained
by the plaintiff was due to the negligence of defendants 2 and 3 who at the
relevant time were the employees of the first defendant, the Government of
Andhra Pradesh, the latter is vicariously liable.
(NEGLIGENCE - RES
IPSA LOQUITUR)
Coyne vs.
Wigan Health Authority (1991) 2 Med. L.R. 301,
QBD
Where,
following an operation under general anaesthetic, a patient in the recovery
ward sustained brain damage caused by anoxia for a period of four to five
minutes.
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration,
Email:cksdas@yahoo.co.in
MEDICAL NEGLIGENCE CASES - CIVIL LAWS Page 51
(GOVERNMENT HOSPITALS)
Consumer Unity and Trust Society, Jaipur vs. State of Rajasthan
There are, in most government hospitals, separate
“paying wards” where affluent patients seek admission, as contrasted with the “general
ward” where a poor patient is treated. Can we say that a patient in a “paying
ward” in a Government hospital is a “consumer” within the meaning of the Act,
but not an ordinary patient admitted to a general ward? That would be patently
iniquitous.
The above
considerations are weighty, and need to be kept in mind while considering the
scope of the terms “consumer” and “hiring for a consideration” in the Consumer
Protection Act. And yet, we have to be cognizant of the implications and
consequences of such a wide and flexible interpretation of the terms “consumer”
and “hiring for a consideration”. Our discussion started with the premise that
in a welfare State, it is the responsibility of the Governments to provide
adequate medical, health care and other facilities to all citizens. It is
possible, indeed it is likely, that by opening up the definition of the term “consumer”
to all users of Government hospitals, we may invite a flood of irresponsible
litigation, especially since the forum of the National Commission as well as
the State Commission and the District Forum is available free of cost to all
complainants. In the result, while some deserving people may benefit through
access to a cheap and quick redressal of their grievances, there could be
unwelcome change in the approach of doctors and hospital authorities to the
treatment of patients, and as a result there is likely to be a general
deterioration of medical facilities and services in Government hospitals. It is
an admitted fact that the resources available to the State are limited; and
that within these resources, the State is endeavouring to do its best to provide
reasonable services to the people. If there are occasional lacunae, the remedy
is not in demoralizing those providing the requisite services not in diverting
their attention from the provision of such services to a spate of irresponsible
litigation - which could easily result from the wider and more flexible
interpretation of the terms “consumer” and “hiring for a consideration” in the
Consumer Protection Act. We are also mindful of the fact that in case of
demonstrable “negligence”, recourse is always possible to a civil suit in an
ordinary court of law. It is not as if a patient would be totally deprived from
seeking justice.
In considering
any economic or social legislation, we need to attach primary importance not to
the letter of the law but to the spirit behind it, to attempt to interpret the
intention of the legislature. It is in this wider context that we are inclined
to accept the stricter (and legal) definition of the terms “consumer” and “hiring
for a consideration” in the Consumer Protection Act. We must endeavour to
ensure the legislation does the greatest good to the greatest number, which we
accept as the obvious intention of Parliament.
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration,
Email:cksdas@yahoo.co.in
MEDICAL
NEGLIGENCE CASES - CIVIL LAWS Page 52
(DUTY
OF CARE –
AGAINST BOLAM TEST)
Maree
Lynette Whitaker, who had for many years been almost totally blind in her right
eye, consulted Christopher Rogers, an ophthalmic surgeon, who advised her that
an operation on the eye would not only improve its appearance but would
probably restore significant sight to it. Whitaker agreed to undergo surgery.
After the operation there was no improvement to the right eye, and Whitaker
developed inflammation in the left eye which led to loss of sight in that eye. The
principal issue in this case relates to the scope and content of the
appellant's duty of care: did the appellant’s failure to advise and warn the
respondent of the risks inherent in the operation constitute a breach of this
duty?
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration,
Email:cksdas@yahoo.co.in
MEDICAL NEGLIGENCE CASES - CIVIL
LAWS Page 53
One
consequence of the application of the Bolam principle to cases involving the provision
of advice or information is that, even if a patient asks a direct question
about the possible risks or complications, the making of that inquiry would
logically be of little or no significance; medical opinion determines whether
the risk should or should not be disclosed and the express desire of a
particular patient for information or advice does not alter that opinion or the
legal significance of that opinion. The fact that the various majority opinions
in Sidaway, (1985) AC, at pp 895, 898, 902-903, for example, suggest that, over
and above the opinion of a respectable body of medical practitioners, the
questions of a patient should truthfully be answered (subject to the
therapeutic privilege) indicates a shortcoming in the Bolam approach. The
existence of the shortcoming suggests that an acceptable approach in point of
principle should recognize and attach significance to the relevance of a
patient’s questions. Even if a court were satisfied that a reasonable person in
the patient’s position would be unlikely to attach significance to a particular
risk, the fact that the patient asked questions revealing concern about the
risk would make the doctor aware that this patient did in fact attach
significance to the risk. Subject to the therapeutic privilege, the question
would therefore require a truthful answer.
The duty of a medical practitioner to
exercise reasonable care and skill in the provision of professional advice and
treatment is a single comprehensive duty. However, the factors according to
which a court determines whether a medical practitioner is in breach of the
requisite standard of care will vary according to whether it is a case involving
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration,
Email:cksdas@yahoo.co.in
MEDICAL NEGLIGENCE CASES - CIVIL
LAWS Page 54
diagnosis,
treatment or the provision of information or advice; the different cases raise
varying difficulties which require consideration of different factors, F v. R.
(1983) 33 SASR, at p 191. Examination of the nature of a doctor-patient
relationship compels this conclusion. There is a fundamental difference
between, on the one hand, diagnosis and treatment and, on the other hand, the
provision of advice or information to a patient. In diagnosis and treatment,
the patient’s contribution is limited to the narration of symptoms and relevant
history; the medical practitioner provides diagnosis and treatment according to
his or her level of skill. However, except in cases of emergency or necessity,
all medical treatment is preceded by the patient’s choice to undergo it. In
legal terms, the patient’s consent to the treatment may be valid once he or she
is informed in broad terms of the nature of the procedure which is intended,
Chatterton v. Gerson (1981) QB 432, at p 443. But the choice is, in reality,
meaningless unless it is made on the basis of relevant information and advice.
Because the choice to be made calls for a decision by the patient on information
known to the medical practitioner but not to the patient, it would be illogical
to hold that the amount of information to be provided by the medical
practitioner can be determined from the perspective of the practitioner alone
or, for that matter, of the medical profession. Whether a medical practitioner
carries out a particular form of treatment in accordance with the appropriate
standard of care is a question in the resolution of which responsible
professional opinion will have an influential, often a decisive, role to play;
whether the patient has been given all the relevant information to choose
between undergoing and not undergoing the treatment is a question of a
different order. Generally speaking, it is not a question the answer to which
depends upon medical standards or practices. Except in those cases where there
is a particular danger that the provision of all relevant information will harm
an unusually nervous, disturbed or volatile patient, no special medical skill
is involved in disclosing the information, including the risks attending the
proposed treatment. Rather, the skill is in communicating the relevant
information to the patient in terms which are reasonably adequate for that
purpose having regard to the patient’s apprehended capacity to understand that
information.
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration,
Email:cksdas@yahoo.co.in
MEDICAL NEGLIGENCE CASES - CIVIL
LAWS Page 55
(MEDICAL PROFESSION)
Dr. A.S. Chandra And Ors. vs. Union Of India
The wife of the fourth respondent received
treatment as an out patient at Sarada Nursing Home for Epigastrium and Chest
pain and Nausea. After routine tests were conducted she was admitted as an
inpatient operated for Cystectomy, Hystrectomy and Appendectomy. When
Laparotomy test was conducted upon her, it was found that she developed
Peritonitis. The patient had to be removed to the Government
Hospital , Guntur
for further treatment; she was admitted in the Guntur Hospital
Challenging the jurisdiction of the District
Forum Writ was filed by the appellant contending that enquiries relating to
professional services rendered by medical practitioners do not fall within the
purview of “complaint” under Section 2(b) of the Consumer Protection Act, 1986.
The expression “service” as defined by Section 2(o) of the Act excludes
professional services rendered by members of the medical profession. If the
services rendered by a doctor for consideration are to be brought within the
purview of Section 2(o) of the Act, it was contended that the same would be
unconstitutional being violative of Article 14 of the Constitution. It was also
pleaded that the consumer forum is not the proper forum to decide the question
since the allegations levelled by the fourth respondent constitute a tortious
act, the adjudication of which requires receiving of elaborate evidence and
consideration of complicated medical norms.
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration,
Email:cksdas@yahoo.co.in
MEDICAL NEGLIGENCE CASES - CIVIL
LAWS Page 56
Hauling up of doctors before consumer protection
forums in respect of the professional services rendered by them for
consideration would be violative of Article 19(1)(g) of the Constitution. Writ
Petition 7341/91 was filed by the Indian Medical Association, A.P.State seeking
a writ of prohibition directing all the District Forums in the State not to
proceed further with the enquiries relating to allegations against members of
the medical profession. It was averred that one of the objects of the Indian
Medical Association is to protect the interests of the medical science and
medical profession in the State of A P and it is the duty of the Association to
maintain the honour and dignity of the noble profession. Neither the district
forums nor the State Commission have jurisdiction to entertain such complaints.
The service rendered by the doctors is “personal service” outside the purview
of Section 2(o) of the Act and, therefore, the Act does not govern them.
Doctors some times have to take “snap decisions” and if their actions are to be
questioned on the ground that the services rendered by them were deficient, it
would be violative of Article l9(1)(g) of the Constitution since they would not
be in a position to practice their profession.
The first respondent Smt. K.Ramalakshmi, was
admitted to the Christian Medical Centre, Pithapuram, the first petitioner, for
an
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration, Email:cksdas@yahoo.co.in
MEDICAL NEGLIGENCE CASES - CIVIL
LAWS Page 57
ailment which was diagnosed as presence of “dense
mass” in the Pelvic for which surgery was advised. After obtaining her consent,
operation was performed by the second petitioner Dr.Nicholus, Medical
Superintendent of the Medical Centre assisted by the third petitioner
Dr.P.Savithri and another Dr.Sanjeeva Rao. The first respondent was discharged
from the Medical Centre. It appears that subsequently the first respondent
consulted one Dr.A.Vijayalakshmi in Kakinada Vellore Hospital
or Appollo Hospital
In W.P.No. 15006/90 one of the additional pleas
raised is that no one has a right to file a civil suit claiming damages
alleging medical negligence and also simultaneously approach a consumer
redressal agency for the same relief.
Engaging a
doctor is undoubtedly a dignified and elegant expression. But that is not the
only expression to articulate the idea of having the services of a doctor. When
a person consults a doctor by paying fees or receives treatment for consideration,
in our view, he is a consumer within the meaning of Section 2(1)(b) of the Act.
Whether the service for consideration is from an individual doctor or from a
medical institution makes no difference. In either case it is service for
consideration.
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration,
Email:cksdas@yahoo.co.in
MEDICAL NEGLIGENCE CASES - CIVIL
LAWS Page 58
The “contract
of personal service” excluded by the definition of service in Section 2(1 )(o)
of the Act predicates master and servant or employer and employee relationship.
Even if the adjective “personal” relates to quality of work, nonetheless it is
a contract of service. In our opinion it would be absurd to say that the
relationship between a doctor and patient is that of a master and servant or an
employer and employee. A patient does not exercise any control, much less
direct control over a doctor or a medical institution where he undergoes
treatment and therefore absence of control being the chief determining factor
it must be held that the relationship is one of contract for personal services
but not contract of personal service.
The definition
of “consumer” includes a person who hires any services for a consideration. In
respect of those services also a complaint can be made and this is explicitly
stated in Section 12. We, therefore, do not see any force in the assertion that
a consumer under the Act is one who buys goods and that persons who obtain the
services of professionals for consideration are outside the ambit of the Act. We,
therefore, hold that in this batch of cases the complainants before the consumer
redressal agencies are consumers within the meaning of Section 2(1)(d) and that
the services rendered by private medical practitioners and private medical
institutions for consideration fall within the ambit of service under Section
2(1)(o) of the Act.
Section 3
makes it explicit that the provisions of the Act shall be in addition to but
not in derogation of any other law for the time being in force. The creation of
additional forums under the Act was conceived of in the interest of general
public for expeditious and effective adjudication of complaints instead of
driving the affected parties to the time consuming process of civil actions in
regular civil courts. An additional forum is not a parallel forum and the
claimant must choose one of the two forums and not both.
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration,
Email:cksdas@yahoo.co.in
MEDICAL NEGLIGENCE CASES - CIVIL
LAWS Page 59
Medical
profession which has been rightly considered as the noblest of all the
professions, from time immemorial enjoyed the highest esteem and gratitude of
the community. The very nature of the functions a doctor discharges calls (Sic)
strict code of conduct both ethical and legal. Disciplinary jurisdiction
exercised by the Medical Council of India under the 1956 Act does not extend to
adjudication of complaints brought against members of the medical profession
for the purpose of awarding compensation or damages. It is, therefore, futile
to contend that the existence of disciplinary jurisdiction under the Medical
Council Act excludes adjudication of complaints by the redressal agencies under
the Consumer Protection Act.
Article 14
prescribes arbitrariness: incorporating the principle of non-discrimination it
permits reasonable classification. It ordains that like should be treated alike
and not all alike. Article 19(1)(g) guarantees that all citizens shall have the
right to practice any profession or carry on any occupation, trade or business.
It is undeniable that practice of medicine is a profession. Clause (6) of
Article 19 lays down that reasonable restrictions can be imposed in respect of
the right guaranteed under Article l9(1)(g) in the interest of the general
public. The existing rights of the members of the medical profession either
under the Indian Medical Council Act, 1956 or the regulations made there under
have not been curtailed or in any manner restricted by any of the provisions of
the Consumer Protection Act. The law was enacted for the purpose of providing
for better protection of the interests of consumers. The basic principles of
Law of Torts which shall constitute the foundation for adjudicating the
question of negligence shall govern proceedings in this regard whether they are
by way of a civil action in a regular civil court or by way of a complaint
before a redressal agency under the Consumer Protection Act. Creation of an
additional forum for expeditious and effective disposal of complaints emanating
from consumers does not amount to invasion of any fundamental right of the
members of any profession. In the impugned Act we discern neither arbitrariness
nor discrimination against the medical profession nor does it in any manner
adversely affect the right of medical doctors to practice their profession.
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration,
Email:cksdas@yahoo.co.in
MEDICAL NEGLIGENCE CASES - CIVIL
LAWS Page 60
(NEGLIGENCE - RES
IPSA LOQUITUR)
Lindsey v. Mid-Western Health Board (1993) 2 I.R.
147 at 181
Where,
following a routine appendisectomy under general anaesthetic, an otherwise fit
and healthy girl suffered a fit and went into a permanent coma.
(INSUFFICIENTLY QUALIFIED)
Dr. Sr. Louie and Anr. vs. Smt. Kannolil Pathumma & Anr. 1993 (1) CPR 422 (NCDRC)
Dr. Louie
showed herself as an M.D. although she was only M.D. Freiberg, a German Degree
which is equivalent to an M.B.B.S. degree in India
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration,
Email:cksdas@yahoo.co.in
MEDICAL NEGLIGENCE CASES - CIVIL
LAWS Page 61
(INCLUSIVE DEFINITION & GOVERNMENT AMENABLE TO THE C P ACT)
To begin with
the preamble of the Act, which can afford useful assistance to ascertain the
legislative intention, it was enacted, ‘to provide for the protection of the
interest of consumers’. Use of the word ‘protection’ furnishes key to the minds
of makers of the Act. Various definitions and provisions which elaborately
attempt to achieve this objective have to be construed in this light without
departing from the settled view that a preamble cannot control otherwise plain
meaning of a provision. In fact the law meets long felt necessity of protecting
the common man from such wrongs for which the remedy under ordinary law for
various reasons has become illusory. Various legislations and regulations
permitting the State to intervene and protect interest of the consumers have
become a haven for unscrupulous ones as the enforcement machinery either does
not move or it moves ineffectively, inefficiently and for reasons which are not
necessary to be stated. The importance of the Act lies in promoting welfare of
the society by enabling the consumer to participate directly in the market
economy. It attempts to remove the helplessness of a consumer which he faces
against powerful business, described as, ‘a network of rackets’ or a society in
which, ‘producers have secured power’ to ‘rob the rest’ and the might of public
bodies which are degenerating into storehouses of inaction where papers do not
move from one desk to another as a matter of duty and responsibility but for
extraneous consideration leaving the common man helpless, bewildered and
shocked. The malady is becoming so rampant, widespread and deep that the
society instead of bothering, complaining and fighting against it, is accepting
it as part of life. The enactment in these unbelievable yet
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration,
Email:cksdas@yahoo.co.in
MEDICAL NEGLIGENCE CASES - CIVIL
LAWS Page 62
harsh
realities appears to be a silver lining, which may in course of time succeed in
checking the rot. A scrutiny of various definitions such as ‘consumer’,
‘service’, ‘trader’, ‘unfair trade practice’ indicates that legislature has
attempted to widen the reach of the Act. Each of these definitions are in two
parts, one, explanatory and the other expandatory. The explanatory or the main
part itself uses expressions of wide amplitude indicating clearly its wide
sweep, then its ambit is widened to such things which otherwise would have been
beyond its natural import. The provisions of the Act thus have to be construed
in favour of the consumer to achieve the purpose of enactment as it is a social
benefit oriented legislation. The primary duty of the court while construing
the provisions of such an Act is to adopt a constructive approach subject to
that it should not do violence to the language of the provisions and is not
contrary to the attempted objective of the enactment.
In fact the
Act requires provider of service to be more objective and caretaking. It is
still more so in public services. When private undertakings are taken over by
the Government or corporations are created to discharge what is otherwise
State's function, one of the inherent objectives of such social welfare
measures is to provide better, efficient and cheaper services to the people.
Any attempt, therefore, to exclude services offered by statutory or official
bodies to the common man would be against the provisions of the Act and the
spirit behind it. A government or semi-government body or a local authority is
as much amenable to the Act as any other private body rendering similar
service. Truly speaking it would be a service to the society if such bodies
instead of claiming exclusion subject themselves to the Act and let their acts
and omissions be scrutinised as public accountability is necessary for healthy
growth of society.
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration,
Email:cksdas@yahoo.co.in
MEDICAL NEGLIGENCE CASES - CIVIL
LAWS Page 63
(PROVISIONS OF THE C P ACT)
Laxmi
Engineering Works vs. P.S.G.Industrial
Institute [(1995) 3 SCC 538]
A review of
the provisions of the Act discloses that the quasi-judicial bodies authorities
agencies created by the Act are not Courts though invested with some of the
powers of a Civil Court
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration,
Email:cksdas@yahoo.co.in
MEDICAL NEGLIGENCE CASES - CIVIL
LAWS Page 64
(QUANTUM OF COMPENSATION)
R.D.Hattangadi vs. Pest
Control (India
Broadly
speaking while fixing an amount of compensation payable to a victim of an
accident, the damages have to be assessed separately as pecuniary damages and
special damages.
Pecuniary
damages are those which the victim has actually incurred and which are capable
of being calculated in terms of money; whereas non-pecuniary damages are those
which are incapable of being assessed by arithmetical calculations. In order to
appreciate two concepts pecuniary damages may include expenses incurred by the
claimant: (i) medical attendance; (ii) loss of earning of profit up to the date
of trial; (iii) other material loss. So far non-pecuniary damages are
concerned, they may include (i) damages for mental and physical shock, pain and
suffering, already suffered or likely to be suffered in future; (ii) damages to
compensate for the loss of amenities of life which may include a variety of
matters i.e. on account of injury the claimant may not be able to walk, run or
sit; (iii) damages for the loss of expectation of life, i.e., on account of
injury the normal longevity of the person concerned is shortened; (iv)
inconvenience, hardship, discomfort, disappointment, frustration and mental
stress in life.
(TREATMENT IN ANOTHER STREAM OF MEDICINE)
Poonam Verma vs. Ashwin Patel & Ors (Supreme Court of India
Respondent No. 1 pursued a 4 years course in
Homoeopathic Medicine and Surgery and after being declared successful in the
Examination conducted by the Homoeopathic Medical College, Anand, Gujarat, he
was awarded a Diploma in Homoeopathic Medicine and Surgery on the basis of
which he was registered as a Medical Practitioner in 1983. Initially, he joined
a private nursing home at Bombay where he worked, as he claims, as Chief
Medical Officer from 1983 till he opened his own private clinic in 1989 and
took up private practice.
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration,
Email:cksdas@yahoo.co.in
MEDICAL NEGLIGENCE CASES - CIVIL
LAWS Page 65
Pramod Verma, who complained of fever was
examined at his residence by Dr. Ashwin Patel, who kept him on allopathic drugs
for viral fever and, thereafter, for typhoid fever. When condition of Pramod
Verma deteriorated, he was shifted to Sanjeevani Maternity and General Nursing
Home of Dr. Rajeev Warty (Respondent No.2) as an indoor patient on 12th July,
1992. This was done on the advice of Respondent No. 1. Verma received treatment
there till he was transferred to the Hinduja Hospital in an unconscious state
where, after about four and a half hour of admission, he died.
Negligence as
a tort is the breach of a duty caused by omission to do something which a
reasonable man would do, or doing something which a prudent and reasonable man
would not do. So far as persons engaged in Medical Profession are concerned, it
may be stated that every person who enters into the profession, undertakes to
bring to the exercise of it, a reasonable degree of care and skill. It is true
that a Doctor or a Surgeon does not undertake that he will positively cure a
patient nor does he undertake to use the highest possible degree of skills as
there may be persons more learned and skilled than himself, but he definitely
undertakes to use a fair, reasonable and competent degree of skill. In the case
of a medical man, negligence means failure to act in accordance with the
standards of reasonably competent medical men at the time. There may be one or
more perfectly proper standards, and if he conforms with one of these proper
standards, then he is not negligent.
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration, Email: cksdas@yahoo.co.in
MEDICAL NEGLIGENCE CASES - CIVIL
LAWS Page 66
A combined
reading of the Acts, namely, the Bombay Homoeopathic Practitioners Act, 1959,
the Indian Medical Council Act, 1956 and the Maharashtra Medical Council Act,
1965 indicates that a person who is registered under the Bombay Homoeopathic
Practitioners Act, 1959 can practice Homoeopathy only and that he cannot be
registered under the Indian Medical Council Act, 1956 or under the State Act,
namely, the Maharashtra Medical Council, Act, 1965, because of the restriction
on registration of persons not possessing the requisite qualification. So also,
a person possessing the qualification mentioned in the Schedule appended to the
Indian Medical Council Act, 1956 or the Maharashtra Medical Counsel Act, 1965
cannot be registered as a Medical Practitioner under the Bombay Homeopathic
Practitioners Act, 1959, as he does not possess any qualification in Homoeopathic
System of Medicine.
It is true
that in all the aforesaid Systems of Medicine, the patient is always a human
being. It is also true that Anatomy and Physiology of every human being all
over the world, irrespective of the country, the habitat and the region to
which he may belong, is the same. He has the same faculties and same systems.
The Central Nervous System, the Cardio-Vascular System, the Digestive and
Reproductive systems etc. are similar all over the world. Similarly, Emotions,
namely, anger, sorrow, happiness, pain etc. are naturally possessed by every
human being. But merely because the Anatomy and Physiology are similar, it does
not mean that a person having studied one System of Medicine can claim to treat
the patient by drugs of another System which he might not have studied at any
stage. No doubt, study of Physiology and Anatomy is common in all Systems of
Medicines and the students belonging to different Systems of Medicines may be
taught physiology and Anatomy together, but so far as the study of drugs is
concerned, the pharmacology of all systems is entirely different.
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration,
Email:cksdas@yahoo.co.in
MEDICAL NEGLIGENCE CASES - CIVIL
LAWS Page 67
An ailment, if
it is not surgical, is treated by medicines or drugs. Typhoid Fever, for
example, can be treated not only under Allopathic System of medicine, but also
under the Ayurvedic, Unani and Homoeopathic Systems of Medicine by drugs
prepared and manufactured according to their own formulate and pharmacopoeia .
Therefore, a person having studied one particular System of Medicine cannot
possibly claim deep and complete knowledge about the drugs of the other System
of Medicine. The bane of Allopathic medicine is that it always has a
side-effect. A warning to this effect is printed on the trade label for the use
of the person (Doctor) having studied that System of Medicine.
Since the law,
under which Respondent No. 1 was registered as a Medical Practitioner, required
him to practice in Homoeopathy only, he was under a statutory duty not to enter
the field of any other System of Medicine as, admittedly, he was not qualified
in the other system, Allopathy, to be precise. He trespassed into a prohibited
field and was liable to be prosecuted under Section 15(3) of the Indian Medical
Council Act, 1956. His conduct amounted to an actionable negligence.
(PROFESSION WITH MULTIFARIOUS
DIFFICULTIES)
Dr. C.S. Subramanian vs. Kumarasamy And Others (Madras
It is by now
well settled that there is no absolute or total immunity to a Medical
Practitioner from liability for his negligence which may be determined by the
rules of Tort, Contract or Equity. Breach of duty on the part of a medical
practitioner may arise on account of breach of the implied contractual duty to
exercise reasonable skill and care and
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration,
Email:cksdas@yahoo.co.in
MEDICAL NEGLIGENCE CASES - CIVIL
LAWS Page 68
breach of duty
of care owed by a medical practitioner to his patient whether or not there is
any contract between them. The test as to whether there has been negligence or
not, in a situation which involves the use of some special skill or competence,
is the exercise of the ordinary skill of an ordinary competent man exercising
and professing to have that special skill. The true test for establishing
negligence in diagnosis or treatment, medicinal or surgical on the part of a
doctor is whether he has been proved to be guilty of such failure as no doctor
of ordinary skill would be guilty of, if acting with ordinary care. Every
person who enters into a learned profession undertakes to bring to the exercise
of it a reasonable and proper degree of care and skill but not that he will use
the highest possible degree of skill or ensure cure or success of the venture.
Instead one can be presumed to have undertaken to bring a fair, reasonable and
competent degree of skill alone. Imposing of liability on hospitals and doctors
for everything that happens to go wrong was held to mean disservice even to the
community at large and that the conditions in which hospitals and doctors have
to the work cannot be completely lost sight of. The profession of Medicine,
perhaps is a field where results are not expected to be or could be guaranteed
since a great deal of medical treatment, even if administered with all the due
skill and care involves some degree of risk and on occasions the medical
treatment involves making a choice between competing risks. It would be all the
more so in the case of a surgeon performing an operation which involves
multifarious difficulties presented by the particular circumstances of case,
the condition of the patient and the whole set of problems arising out of the
risk to which he is being exposed, difficulties of the surgeons choice between
risks and the paramount need of his discretion being unfettered if he thinks it
right to take one risk to avoid another.
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration,
Email:cksdas@yahoo.co.in
MEDICAL NEGLIGENCE CASES - CIVIL
LAWS Page 69
(MEDICAL PROFESSION – SERVICE)
Indian Medical Association vs. V.P. Shantha & Ors (Supreme Court of India
(1) Service rendered to a patient by a medical
practitioner (except where the doctor renders service free of charge to every
patient or under a contract of personal service), by way of consultation,
diagnosis and treatment, both medicinal and surgical, would fall within the
ambit of ‘service’ as defined in Section 2(1) (o) of the Act.
(2) The fact
that medical practitioners belong to the medical profession and are subject to
the disciplinary control of the Medical Council of India and/or State Medical
Councils constituted under the provisions of the Indian Medical Council Act
would not exclude the services rendered by them from the ambit of the Act.
(3) A ‘contract
of personal service’ has to be distinguished from a ‘contract for personal
services’. In the absence of a relationship of master and servant between the
patient and medical practitioner, the service rendered by a medical
practitioner to the patient cannot be regarded as service rendered under a ‘contract
of personal service’. Such service is service rendered under a ‘contract for
personal services’ and is not covered by exclusionary clause of the definition
of ‘service’ contained in Section 2(1) (o) of the Act. (4) The expression ‘contract
of personal service’ in Section 2(1) (o) of the Act cannot be confined to
contracts for employment of domestic servants only and the said expression would
include the employment of a medical officer for the purpose of rendering
medical service to the employer. The service rendered by a medical officer to
his employer under the contract of employment would be outside the purview of ‘service’
as defined in Section 2(1) (o) of the Act.
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration,
Email:cksdas@yahoo.co.in
MEDICAL NEGLIGENCE CASES - CIVIL
LAWS Page 70
(5) Service
rendered free of charge by a medical practitioner attached to a
hospital/Nursing home or a medical officer employed in a hospital/Nursing home
where such services are rendered free of charge to everybody, would not be ‘service’
as defined in Section 2(1) (o) of the Act. The payment of a token amount for
registration purpose only at the hospital/nursing home would not alter the
position.
(6) Service
rendered at a non-Government hospital/Nursing home where no charge whatsoever
is made from any person availing the service and all patients (rich and poor)
are given free service - is outside the purview of the expression ‘service’ as
defined in Section 2(1) (o) of the Act. The payment of a token amount for
registration purpose only at the hospital/Nursing home would not alter the
position.
(7) Service
rendered at a non-Government hospital/Nursing home where charges are required
to be paid by the persons availing such services falls within the purview of
the expression ‘service’ as defined in Section 2(1) (o) of the Act.
(8) Service
rendered at a non-Government hospital/Nursing home where charges are required
to be paid by persons who are in a position to pay and persons who cannot afford
to pay are rendered service free of charge would fall within the ambit of the
expression 'service' as defined in Section 2(1) (o) of the Act irrespective of
the fact that the service is rendered free of charge to persons who are not in
a position to pay for such services. Free service, would also be ‘service’ and
the recipient a ‘consumer’ under the Act.
(9) Service
rendered at a Government hospital/health centre/dispensary where no charge
whatsoever is made from any person availing the services and all patients (rich
and poor) are given free service - is outside the purview of the expression ‘service’
as defined in Section 2(1) (o) of the Act. The payment of a token amount for
registration purpose only at the hospital/nursing home would not alter the position.
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration,
Email:cksdas@yahoo.co.in
MEDICAL NEGLIGENCE CASES - CIVIL
LAWS Page 71
(10) Service
rendered at a Government hospital/health centre/dispensary where services are
rendered on payment of charges and also rendered free of charge to other
persons availing such services would fall within the ambit of the expression ‘service’
as defined in Section 2(1) (o) of the Act irrespective of the fact that the
service is rendered free of charge to persons who do not pay for such service.
Free service would also be ‘service’ and the recipient a ‘consumer’ under the
Act.
(11) Service
rendered by a medical practitioner or hospital/nursing home cannot be regarded
as service rendered free of charge, if the person availing the service has
taken an insurance policy for medical care whereunder the charges for
consultation, diagnosis and medical treatment are borne by the insurance
company and such service would fall within the ambit of ‘service’ as defined in
Section 2(1) (o) of the Act.
(12)
Similarly, where, as a part of the conditions of service, the employer bears
the expenses of medical treatment of an employee and his family members
dependent on him, the service rendered to such an employee and his family
members by a medical practitioner or a hospital/nursing home would not be free
of charge and would constitute ‘service’ under Section 2(1) (o) of the Act.
(SCISSORS LEFT BY THE SURGEON)
Nihal Kaur vs. Director, P.G.I.M.S.R. (1996) CPJ 112
A patient died
a day after surgery and the relatives found a pair of scissors utilized by the
surgeon while collecting the last remains. The doctor was held liable and a
compensation was awarded by the State Consumer Forum, Chandigarh
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration,
Email:cksdas@yahoo.co.in
MEDICAL NEGLIGENCE CASES - CIVIL
LAWS Page 72
(WEIGHING OF RISKS AGAINST BENEFIT)
Bolitho vs. City and
Hackney Health Authority [1997] 4 All ER 771
The
claim relates to treatment received by Patrick Nigel Bolitho at St.
Bartholomew’s Hospital on 1984, when he was two years old. Patrick suffered
catastrophic brain damage as a result of the bronchial air passages becoming
blocked leading to cardiac arrest. The doctor who, negligently, failed to
attend said that she would not have intubated the boy even if she would have
attended as she weighted risks against benefits; at that time it was agreed
that the only course of action to prevent the damage was to have the boy
intubated. Six expert witnesses were brought to testify, in which five said
they would have carried the procedure and one disagreed. By the end of the
trial it was common ground, first, that intubation so as to provide an airway
in any event would have ensured that the respiratory failure which occurred did
not lead to cardiac arrest and, second, that such intubation would have had to
be carried out, if at all, before the final catastrophic episode. The House of
Lords held that there would have to be a logical basis for the opinion not to
intubate. This means that a judge will be entitled to choose between two bodies
of expert opinion and to reject an opinion which is ‘logically indefensible’.
This has been interpreted as being a situation where the court sets the law for
clinical negligence.
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration,
Email:cksdas@yahoo.co.in
MEDICAL NEGLIGENCE CASES - CIVIL
LAWS Page 73
(DISCLOSURE
OF AIDS DIAGNOSIS)
Mr
‘X’ vs. Hospital ‘Z’, AIR 1999 SC 495,
JT 1998 (7) SC 626, 1998 (6) SCALE 230
The appellant, MBBS ,
MD , Diploma was in the Nagaland State Madras Madras
It is
true that in the doctor-patient relationship, the most important aspect is the
doctor’s duty of maintaining secrecy. A doctor cannot disclose to a person any
information regarding his patient which he has gathered in the course of
treatment nor can the doctor disclose to anyone else the mode of treatment or
the advice given by him to the patient.
Hippocratic
Oath as such is not enforceable in a court of law as it has no statutory force.
Medical information about a person is protected by the Code of Professional
Conduct made by the Medical Council of India under Section 33(m) read with
Section 20A of the Act. The relevant provisions of the Code of Medical Ethics
have already been reproduced above which contain an exception to the general
rule of confidentiality,
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration,
Email:cksdas@yahoo.co.in
MEDICAL NEGLIGENCE CASES - CIVIL
LAWS Page 74
inasmuch
as it provides that the information may be disclosed in a court of law under
the orders of the Presiding Judge. This is also the law in England where it is
provided that the exceptions to this rule permit disclosure with the consent,
or in the best interests, of the patient, in compliance with a court order or
other legally enforceable duty and, in very limited circumstances, where the
public interest so requires. Circumstances in which the public interest would
override the duty of confidentiality could, for example, be the investigation
and prosecution of serious crime or where there is an immediate or future (but
not a past and remote) health risk to others.
The
argument of the learned counsel for the appellant, therefore, that the
respondents were under a duty to maintain confidentiality on account of the
Code of Medical Ethics formulated by the Indian Medical Council cannot be
accepted as the proposed marriage carried with it the health risk to an identifiable
person who had to be protected from being infected with the communicable
disease from which the appellant suffered. The right to confidentiality, if
any, vested in the appellant was not enforceable in the present situation.
Disclosure
of even true private facts has the tendency to disturb a person’s tranquility.
It may generate many complexes in him and may even lead to psychological
problems. He may, thereafter, have a disturbed life all through. In the face of
these potentialities, and as already held by this Court in its various
decisions referred to above, the Right of Privacy is an essential component of
right to life envisaged by Article 21. The right, however, is not absolute and
may be lawfully restricted for the prevention of crime, disorder or protection
of health or morals or protection of rights and freedom of others.
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration,
Email:cksdas@yahoo.co.in
MEDICAL NEGLIGENCE CASES - CIVIL
LAWS Page 75
Having
regard to the fact that the appellant was found to be HIV(+), its disclosure
would not be violative of either the rule of confidentiality or the appellant’s
Right of Privacy as Ms. Akali with whom the appellant was likely to be married
was saved in time by such disclosure, or else, she too would have been infected
with the dreadful disease if marriage had taken place and consummated
The
emphasis, therefore, in practically all systems of marriage is on a healthy
body with moral ethics. Once the law provides the “venereal disease” as a
ground for divorce to either husband or wife, such a person who was suffering
from that disease, even prior to the marriage cannot be said to have any right
to marry so long as he is not fully cured of the disease. If the disease, with
which he was suffering, would constitute a valid ground for divorce, was
concealed by him and he entered into marital ties with a woman who did not know
that the person with whom she was being married was suffering from a virulent
venereal disease, that person must be injuncted from entering into marital ties
so as to prevent him from spoiling the health and, consequently, the life of an
innocent woman.
Sections
269 and 270 of the Indian Penal Code spell out two separate and distinct
offences by providing that if a person, negligently or unlawfully, does an act
which he knew was likely to spread the infection of a disease, dangerous to
life, to another person, then, the former would be guilty of an offence,
punishable with imprisonment for the term indicated therein. Therefore, if a
person suffering from the dreadful disease “AIDS”, knowingly marries a woman
and thereby transmits infection to that woman, he would be guilty of offences
indicated in Sections 269 and 270 of the Indian Penal Code. The Court cannot
assist that person to achieve that object.
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration, Email:cksdas@yahoo.co.in
MEDICAL NEGLIGENCE CASES - CIVIL
LAWS Page 76
(DIAGNOSIS WITH EVIDENCE)
Consumer Protection Council and Others vs. Dr. M.
Sundaram and Anr (1998) CPJ 3
After diagnosing the ailment as Hodgkin’s
Lymphoma, the patient was administered Endoxan injection five doses in five
days. She was referred to another doctor who was an ENT specialist, who after
examination opined that no lymph glands were seen. A sample of her bone marrow
was sent to an Oncologist who opined that the picture does not fit with Hodgkin’s
disease but the patient had megaloblastic anemia in the bone marrow.
Subsequently she was discharged from the nursing home and was advised for specialized
treatment. The patient consulted another doctor who diagnosed the same as renal
failure. The complainant alleged that the first doctor failed and neglected to
refer the matter to a Cancer Specialist but wrongly diagnosed the ailment of
the patient as Hodgkin’s Lymphoma and had unnecessarily administered injection
of Endoxan and because of the toxicity of that drug the kidney cells of the
patient got destroyed resulting in renal failure for which she had to undergo
kidney transplantation which led to her death. The National Commission,
upholding the State Commission decision, held that there was no negligence on
the part of the doctor who had consulted a pathologist, and in the light of
discussion with him and on inspection of some more slides of bone marrow
specimens which also revealed the same finding, namely, existence of deposits
of Hodgkin’s Lymphoma, proceeded to administer the patient injections of
Endoxan. It was held on the basis of medical opinion that any prudent
consultant physician would not delay the commencement of chemotherapy where
repeated examination of the bone marrow slides had yielded the report that the
Hodgkin’s deposits were present. Endoxan is a drug of choice in the treatment
of Hodgkin’s Lymphoma and there was no negligence on the part of the doctor.
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration,
Email:cksdas@yahoo.co.in
MEDICAL NEGLIGENCE CASES - CIVIL
LAWS Page 77
(EXPERT EVIDENCE NOT AVAILABLE)
Sethuraman Subramaniam Iyer vs. Triveni Nursing Home and
Another (1998) CPJ 110
The complainant’s
wife suffered from Sinusitis and was advised surgery by the doctor. She had
suffered a massive heart attack while in the operation theatre. The State
Commission found that necessary precautions and effective measures were taken
to save the deceased and dismissed the complaint. The State Commission relied
on the affidavits of four doctors who opined that there was no negligence. The
complainant had not given any expert evidence to support his allegation and in
these circumstances it was held that no case was made out against the doctor.
(SPEEDY SUMMARY TRIAL & QUANTUM OF CLAIM)
Charan Singh vs.
Healing Touch Hospital
Treatment of stomachache and burning sensation
while passing urine - operation for removal of stone from the Urethra -
complications on account of negligence of hospital and its team of doctors -
paralysed on the right hand side - discharged from the hospital - Despite
taking the prescribed medicines, there was no improvement - also started
passing blood along with urine – once again admitted him to the hospital -
another operation to stop passing blood with urine - after administering
anesthesia collected his signatures on some papers - discharged from the
hospital in the same paralytic condition - thereafter went to Medical
Diagnostic Centre, Hauz Khas, New Delhi - the appellant was told that his left
kidney had been removed - The appellant
was shocked - as a result of the negligence
of doctors at respondent No.l hospital, he has become disabled and handicapped
with his right side being paralysed.
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration,
Email:cksdas@yahoo.co.in
MEDICAL NEGLIGENCE CASES - CIVIL
LAWS Page 78
The appellant
ought not to have been condemned unheard after waiting for six long years; the
legislative intent, for enacting the legislation, of a speedy summary trial, to
settle the claim of the complainant (consumers) has been respected in breach.
The spirit of the benevolent legislation has been overlooked and its object
frustrated by non-suiting the appellant in the manner in which it has been done
by the National Consumer Forum. The Consumer Forums must take expeditious steps
to deal with the complaints filed before them and not keep them pending for
years. It would defeat the object of the Act, if summary trials are not
disposed of expeditiously by the forums at the District, State or National
levels. Steps in this direction are required to be taken in the right earnest.
The National
Consumer Forum, in our option, was not fair in disposing of the complaint of
the appellant by styling his claim as “excessive” or “exaggerated”, after six
years of the pendency of the complaint, and asking the appellant to move the
State Commission or the District Forum by making “a realistic claim” Whether
the claim of the appellant was “realistic”, “exaggerated” or “excessive”, could
only have been determined after the appellant had been given an opportunity to
prove the case he had set up and established his claim under various heads. It
was not fair to call his claim “unrealistic”, “exaggerated” or “excessive”
without giving the appellant an opportunity to substantiate his case.
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration,
Email:cksdas@yahoo.co.in
MEDICAL NEGLIGENCE CASES - CIVIL
LAWS Page 79
(STERILIZATION OPERATION)
State
of Haryana
The lady had
offered herself for complete sterilization and not for partial operation and,
therefore, both her fallopian tubes should have been operated upon. It was
found as a matter of fact that only the right fallopian tube was operated upon
and the left fallopian tube was left untouched. She was issued a certificate
that her operation was successful and she was assured that she would not
conceive a child in future. It was in these circumstances, that a case of
medical negligence was found and a decree for compensation in tort was held
justified.
(QUANTUM OF COMPENSATION)
Lata
Wadhwa & Ors. vs. State of Bihar & Ors. (Supreme Court of India
In view of the
indications in the order of this Court, referring the matter to Shri
Chandrachud that in deciding the quantum of compensation, the principles
evolved in Safia Khatoons case as well as two other cases of Andhra Pradesh
High Court, in the Report, the principles evolved in the aforesaid Judgments
have been analysed at the first instance. It has been held that the multiplier
method having been consistently applied by the Supreme Court to decide the
question of compensation in the cases arising out of Motor Vehicles Act, the
said multiplier method has been adopted in the present case. In the report,
even the view of British Law Commission has been extracted, which indicates:
the multiplier has been, remains and should continue to remain, the ordinary,
the best and only method of assessing the value of a number of future annual
sums. It has also been stated in the aforesaid report that though Lord Denning
advocated the use of the annuity tables and the actuary’s assistance in Hodges
vs. Harland & Wolff Limited (1965) 1 ALL ER 1086, but the British Law
Commission accepted the use and relevancy of the annuity tables in its Working
Paper No. 27 by observing : The actuarial method of calculation, whether from
expert evidence or from tables, continues to be technically relevant and
technically admissible but its usefulness is confined, except perhaps in very
unusual cases, to an ancillary means of checking a computation already made by
the multiplier method. Even Kemp & Kemp on Quantum of Damages after
comparing the multipliers chosen by judges from their experience found a close
proximity between the said multiplier method and those arrived at from the
annuity tables in the American Restatement of the Law of Torts. After a
thorough analysis of the different methods of computation of the compensation
to be paid to the dependants of the deceased and what are the different methods
of computing loss of future earnings, Shri Chandrachud has come to the
conclusion that the multiplier method is of universal application and is being
accepted and adopted in India by Courts, including the Supreme Court and as
such, it would be meet and proper to apply the said method for determining the
quantum of compensation.
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration,
Email:cksdas@yahoo.co.in
MEDICAL NEGLIGENCE CASES - CIVIL
LAWS Page 80
(PROFESSIONAL OPINION)
Vinitha Ashok vs. Lakshmi Hospital
A doctor will be liable for
negligence in respect of diagnosis and treatment in spite of a body of
professional opinion approving his conduct where it has not been established to
the court’s satisfaction that such opinion relied on is reasonable or
responsible. If it can be demonstrated that the professional opinion is not
capable of withstanding the logical analysis, the court would be entitled to
hold that the body of opinion is not reasonable or responsible.
(THE OBJECT OF THE C P ACT)
Common
Cause, A Registered Society vs. Union of
India
The object of
the legislation, as the Preamble of the Act proclaims, is “for better protection
of the interests of consumers”. During, the last few years proceeding the
enactment there was in this country a marked awareness among the consumers of
goods that they were not getting their money’s worth and were being exploited
by both traders and manufacturers of consumer goods. The need for consumer
redressal fora was, therefore, increasingly felt.
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration,
Email:cksdas@yahoo.co.in
MEDICAL NEGLIGENCE CASES - CIVIL
LAWS Page 81
(DELAY IN PROCEEDINGS)
Dr. J.J. Merchant & Ors vs. Shrinath Chaturvedi (Supreme Court of India
(2002) 6 SCC 635
For avoiding
delay in disposal of complaints within prescribed period, National Commission
is required to take appropriate steps including:
(a) By
exercise of Administrative control, it can be seen that competent persons are
appointed as Members on all levels so that there may not be any delay in
composition of the Forum or the Commission for want of Members;
(b) It would
oversee that time limit prescribed for filing defence version and disposal of
complaints is strictly adhered to;
(c) It would
see that complaint as well as defence version should be accompanied by
documents and affidavits upon which parties intend to rely;
(d) In cases
where cross-examination of the persons who have filed affidavits is necessary,
suggested questions of cross-examination be given to the persons who have
tendered their affidavits and reply may be also on affidavits;
(e) In cases
where Commission deems it fit to cross- examine the witnesses in person, video
conference or telephonic conference at the cost of person who so applies could
be arranged or cross-examination could be through a Commission. This procedure
would be helpful in cross-examination of experts, such as, Doctors.
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration, Email:cksdas@yahoo.co.in
MEDICAL NEGLIGENCE CASES - CIVIL
LAWS Page 82
(EXECUTION AS PER C P ACT)
State of Karnataka
vs. Vishwabarathi House Building
(Supreme Court of India
The
terminology used in Section 25 of the Act to the effect “in the event of its
inability to execute it” is of great significance. Section 25, on a plain reading,
goes to show that the provision contained therein presuppose that the Forum or
the Commission would be entitled to execute its order. It however, may send the
matter for its execution to a court only in the event it is unable to do so.
Such a contingency may arise only in a given situation but in our considered
opinion the same does not lead to the conclusion that the Consumer Courts
cannot execute its own order and by compulsion it has to send all its orders
for execution to the civil courts. Such construction of Section 25 in our
opinion would violate the plain language used therein and thus, must be held to
be untenable.
(PRINCIPLES OF NATURAL JUSTICE)
R V E Venkatachala Gounder vs. Arulmigu Viswesaraswami & V P Temple
Ordinarily, an
objection to the admissibility of evidence should be taken when it is tendered
and not subsequently. The objections as to admissibility of documents in
evidence may be classified into two classes: (i) an objection that the document
which is sought to be proved is itself inadmissible in evidence; and (ii) where
the objection does not dispute the admissibility of the document in evidence
but is directed
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration,
Email:cksdas@yahoo.co.in
MEDICAL
NEGLIGENCE CASES - CIVIL LAWS Page 83
towards the
mode of proof alleging the same to be irregular or insufficient. In the first
case, merely because a document has been marked as an exhibit, an objection as
to its admissibility is not excluded and is available to be raised even at a
later stage or even in appeal or revision. In the latter case, the objection
should be taken when the evidence is tendered and once the document has been
admitted in evidence and marked as an exhibit, the objection that it should not
have been admitted in evidence or that the mode adopted for proving the
document is irregular cannot be allowed to be raised at any stage subsequent to
the marking of the document as an exhibit. The latter proposition is a rule of
fair play. The crucial test is whether an objection, if taken at the
appropriate point of time, would have enabled the party tendering the evidence
to cure the defect and resort to such mode of proof as would be regular. The
omission to object becomes fatal because by his failure the party entitled to
object allows the party tendering the evidence to act on an assumption that the
opposite party is not serious about the mode of proof. On the other hand, a
prompt objection does not prejudice the party tendering the evidence, for two
reasons: firstly, it enables the court to apply its mind and pronounce its
decision on the question of admissibility then and there; and secondly, in the
event of finding of the court on the mode of proof sought to be adopted going
against the party tendering the evidence, the opportunity of seeking indulgence
of the court for permitting a regular mode or method of proof and thereby
removing the objection raised by the opposite party, is available to the party
leading the evidence. Such practice and procedure is fair to both the parties.
Out of the two types of objections, referred to hereinabove, in the latter
case, failure to raise a prompt and timely objection amounts to waiver of the
necessity for
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration,
Email:cksdas@yahoo.co.in
MEDICAL NEGLIGENCE CASES - CIVIL
LAWS Page 84
insisting on
formal proof of a document, the document itself which is sought to be proved
being admissible in evidence. In the first case, acquiescence would be no bar
to raising the objection in a superior court. Section 22 of the Consumer
Protection Act, 1986 provides that Sections 12, 13 and 14 thereof and the rules
made thereunder for disposal of the complaints by the District Forum, shall
with such modification as may be considered necessary by the Commission, be
applicable to the disposal of disputes by the National Commission. Section 12
of the 1986 Act provides for the manner in which the complaint shall be made.
Section 13 prescribes the procedure on admission of the complaint. Sub-section
(3) thereof reads:-
(3) No
proceedings complying with the procedure laid down in sub-sections (1) and (2)
shall be called in question in any court on the ground that the principles of
natural justice have not been complied with. Apart from the procedures laid
down in Section 12 and 13 as also the Rules made under the Act, the Commission
is not bound by any other prescribed procedure. The provisions of the Indian Evidence
Act are not applicable. The Commission is merely to comply with the principles
of natural justice, save and except the ones laid down under sub-section (4) of
Section 13 of the 1986 Act.
(LASIK & PRK)
Tarun Thakore vs. Dr. Noshir M. Shroff, Dr. Dariel Mathur
and Shroff Eye Centre, 2003 (1) CLD 62 (NCDRC)
Complainant has alleged medical negligence
against the opposite parties numbering three. Complainant says he got his two
eyes operated from the opposite parties as he suffered from myopia (shortsightedness-Not
able to see distant objects clearly). It was
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration, Email: cksdas@yahoo.co.in
MEDICAL NEGLIGENCE CASES - CIVIL
LAWS Page 85
admitted during course of arguments that there is
no complaint about any medical negligence in respect of his left eye. As
regards right eye he says that though vision improved but he developed central
island, monocular diplopia (seeing double images of one object when using one
eye only) and ghost image/after image (faint duplicate image overlapping the
original image of the object one is seeing). Other complaints were that while
performing the operation opposite parties did not use the better method which
was available i.e. Lasik technology (LASIK - Laser Assisted in Situ
Keratomileusis) and instead used laser technology (PRK- Photorefractive
Keratectomy). Yet another complaint was that the complainant was not told of
the consequences that might result from the operation.
PRK Surgery
involves vaporizing away microscopic layers of corneal tissue to modify the
curvature of the lens. In other words, the laser ablates (surgically removes) a
position of the cornea. After such an operation the cornea undergoes a process
of healing. Such healing of the cornea can sometimes be irregular. This is a
well-known and well-documented side effect and is dependent on various factors.
A central island is one such irregularity and may be defined as a well
circumscribed, usually central circular or oval area of relatively greater
corneal topographic power and created within the region of reduced corneal
topographic power created by Excimer laser PRK or LASIK. Central Island
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration, Email: cksdas@yahoo.co.in
MEDICAL NEGLIGENCE CASES - CIVIL
LAWS Page 86
After
examining whole aspect of the matter it would appear that any allegation of
negligence attributed to the opposite parties is wholly misplaced. Before the
operation was performed complainant was well-aware of the procedure and the
consequences. There is no deficiency in the operation and there is no
negligence. As a matter of fact there is no allegation of any negligence
against Dr. Mathur, the second opposite party. Her being impleaded as an
opposite party was not proper. An allegation of negligence against a doctor is
a serious matter. It is an attack on his professionalism which he will
certainly feel deeply.
(INSURANCE COMPANY A PROPER
PARTY IN MEDICAL NEGLIGENCE CASE)
Dr.
C.C. Choubal vs. Pankaj Srivastava: IV
(2003) CPJ 111 NC (NCDRC)
In a case of medical negligence
against the doctor, an application was filed by him to implead the Insurance
Company as correspondent. Insurance Company may not be a necessary party but it
is certainly a proper party inasmuch as claim against the Doctor would be
covered if there is any medical negligence found against him. It would be more
appropriate if Insurance Company is made a co-respondent. Subsequently the
orders against the Doctor, if any, are passed there would be no difficulty for
the complainant to get the amount of compensation to the extent of amount of
the policy from the Insurance Company.
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration, Email: cksdas@yahoo.co.in
MEDICAL NEGLIGENCE CASES - CIVIL LAWS Page 87
(NEGLIGENT ACT)
Dr. Suresh Gupta vs. Govt. of NCT of Delhi
The operation
performed by the appellant was for removing nasal deformity. The Magistrate who
charged the appellant stated in his judgment that the appellant while
conducting the operation for removal of the nasal deformity gave incision in a
wrong part and due to that blood seeped into the respiratory passage and
because of that the patient collapsed and died. The High Court upheld the order
of the Magistrate observing that adequate care was not taken to prevent seepage
of blood resulting in asphyxia. The Supreme Court held that from the medical
opinions adduced by the prosecution the cause of death was stated to be ‘not
introducing a cuffed endotracheal tube of proper size as to prevent aspiration
of blood from the wound in the respiratory passage.’ The Supreme Court held
that this act attributed to the doctor, even if accepted to be true, can be
described as a negligent act as there was a lack of care and precaution so as
to be liable in a civil case.
(UNQUALIFIED DOCTOR)
Md. Suleman Ansari (D.M.S.) vs. Shankar Bhandari (2005) 12 SCC 430
The respondent
suffered a fracture of his hand. He went to the appellant who held himself out
to be a qualified medical practitioner. The appellant bandaged the respondent’s
hand and prescribed certain medicines. He was ultimately taken to another
doctor but by this time the damage to his hand was permanent. It was found that
the appellant was not a qualified doctor to give treatment to the respondent.
The Supreme Court had directed him to pay compensation to the respondent.
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration, Email: cksdas@yahoo.co.in
MEDICAL NEGLIGENCE CASES - CIVIL
LAWS Page 88
(STERILIZATION OPERATION)
State
of Punjab
Child birth in
spite of a sterilization operation can occur due to negligence of the doctor in
performance of the operation, or due to certain natural causes such as
spontaneous recanalisation. The doctor can be held liable only in cases where
the failure of the operation is attributable to his negligence and not
otherwise. Several textbooks on medical negligence have recognized the percentage
of failure of the sterilization operation due to natural causes to be varying
between 0.3% to 7% depending on the techniques or method chosen for performing
the surgery out of the several prevalent and acceptable ones in medical
science. The fallopian tubes which are cut and sealed may reunite and the woman
may conceive though the surgery was performed by a proficient doctor
successfully by adopting a technique recognized by medical science. Thus, the
pregnancy can be for reasons de hors any negligence of the surgeon. In the
absence of proof of negligence, the surgeon cannot be held liable to pay
compensation. Then the question of the State being held vicariously liable also
would not arise.
Merely because
a woman having undergone a sterilization operation became pregnant and
delivered a child, the operating surgeon or his employer cannot be held liable
for compensation on account of unwanted pregnancy or unwanted child. The claim
in tort can be sustained only if there was negligence on the part of the surgeon
in performing the surgery. The proof of negligence shall have to satisfy Bolam’s
test. So also, the surgeon cannot be held liable in contract unless the
plaintiff alleges and proves that the surgeon had assured 100 % exclusion of
pregnancy after the surgery and was only on the basis of such assurance that
the plaintiff was persuaded to undergo surgery. The cause of failure of
sterilization operation may be obtained from laparoscopic inspection of the
uterine tubes, or by x-ray examination, or by pathological examination of the
materials removed at a subsequent operation of re-sterilisation. The
discrepancy between operation notes and the result of x-ray films in respect of
the number of rings or clips or nylon sutures used for occlusion of the tubes,
will lead to logical inference of negligence on the part of the gynaecologist
in case of failure of sterilisation operation.
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration, Email: cksdas@yahoo.co.in
MEDICAL NEGLIGENCE CASES - CIVIL
LAWS Page 89
(STERILIZATION OPERATION)
State of Haryana
If a child is
born to a woman even after she had undergone a sterilization operation by a
surgeon, the doctor was not liable because there cannot be a 100% certainty
that no child will be born after a sterilization operation.
(HOSPITAL RUN BY THE EMPLOYER)
Laxman Thamappa Kotgiri vs. G M Central
Railway & Ors. 2005 (1) Scale 600: (2007) 4 SCC 596
An employee of the railways had filed a
complaint on the ground that his wife had been negligently treated at a
hospital of the Central Railway as a result of which she had died.
There
is no dispute that the Hospital in question has been set up for the purpose of
granting medical treatment to the Railway employees and their dependents. Apart
from the nominal charges which are taken from such an employee, this facility is
part of the service conditions of the Railway employees. V.P. Shantha’s case
has made a distinction between non-Governmental hospital/nursing home where no
charge whatsoever was made from any person availing of the service and all
patients are given free service (vide para 55(6) at page 681) and services
rendered at Government Hospital/Health Centre/Dispensary where no charge
whatsoever is made from any person availing of the services and all patients
are given free service [vide para 55(9)] on the hand and service rendered to an
employee and his family members by a medical practitioner or a hospital/nursing
home which are given as part of the conditions of service to the employee and
where the employer bears expenses of the medical treatment of the employee and
his family members, [paragraph 55(12)] on the other. In the first two
circumstances, it would be free service within the definition of the Sec.
2(1)(o) of the Act. In the third circumstance it would not be.
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration, Email: cksdas@yahoo.co.in
MEDICAL NEGLIGENCE CASES - CIVIL
LAWS Page 90
Since, it
is not in dispute that the medical treatment in the said Hospital is given to
employees like the appellant and his family members is part of the conditions
of service of the appellant and that the Hospital is run and subsidised by the
appellant’s employer, namely, the Union of India, the appellant’s case would
fall within the parameters laid down in paragraph 55(12) of the judgment in
V.P. Shantha’s case and not within the parameters of either para 55(6) or para
55(9) of the said case.
(STERILIZATION)
Smt.
Madhubala vs. Govt. of NCT of Delhi Delhi
Mere
conception and delivery post-sterilization operation is no indication of
negligence, more so, in the teeth of the evidence, that risk of such
conceptions and deliveries still remains. What is more, the statement of Dr.
S.B. Mahanty does not show that she had not exercised reasonable degree of
care. The appellant has thus failed to prove negligence on the part of the
hospital or the doctor concerned. And, in view of the evidence noticed above,
it is surely not a case of res ipsa
liquitur. This is not all. The appellant is asking for damages and yet she
was herself negligent enough. She, as already noticed, did not rush to the
hospital on missing the menstrual cycle though she ought to have. Some remedial
measures could still be taken. By her negligence, or call it failure, the
opportunity to take such measures was lost.
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration, Email: cksdas@yahoo.co.in
MEDICAL NEGLIGENCE CASES - CIVIL
LAWS Page 91
(ESIC UNDER CP Act)
Kishore Lal vs. Chairman, E S I Corporation (Supreme Court of India
The question that falls for consideration
is two-fold:
1. Whether the service rendered by an ESI
hospital is gratuitous or not, and consequently whether it falls within the
ambit of ‘service’ as defined in the Consumer Protection Act, 1986?
2. Whether Section 74 read with Section 75
of the Employee’s State Insurance Act, 1948 ousts the jurisdiction of the
consumer forum as regards the issues involved for consideration?
In
paragraph 55 of the judgment, Indian Medical Association vs. V P Shantha and
Ors., the Court summarized its conclusions. We are really concerned in this
case with conclusion No. (11), which says that if a patient or his relation
availed of the service of a medical practitioner or hospital/nursing home where
the charges for consultation, diagnosis and medical treatment are borne by the
insurance company, then such service would fall within the ambit of service under
Section 2(1)(o).
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration, Email: cksdas@yahoo.co.in
MEDICAL NEGLIGENCE CASES - CIVIL
LAWS Page 92
On a
plain reading of the provisions of the ESI Act, it is apparent that the
Corporation is required to maintain and establish the hospitals and
dispensaries and to provide medical and surgical services. Service rendered in
the hospital to the insured person or his family member for medical treatment
is not free, in the sense that the expense incurred for the service rendered in
the hospital would be borne from the contributions made to the insurance scheme
by the employer and the employee and, therefore, the principle enunciated in
conclusion No. (11) in para 55 in the case of Indian Medical Association
(supra) will squarely apply to the facts of the present case. The service
rendered by the medical practitioners of hospitals/nursing homes run by the ESI
Corporation cannot be regarded as a service rendered free of charge. The person
availing of such service under an insurance scheme of medical care, where under
the charges for consultation, diagnosis and medical treatment are borne by the
insurer, such service would fall within the ambit of ‘service’ as defined in
Section 2(1)(o) of the CP Act. We are of the opinion that the service provided
by the ESI hospital/dispensary falls within the ambit of ‘service’ as defined in
Section 2(1)(o) of the CP Act. ESI scheme is an insurance scheme and it
contributes for the service rendered by the ESI hospitals/dispensaries, of
medical care in its hospitals/dispensaries, and as such service given in the
ESI hospitals/dispensaries to a member of the Scheme or his family cannot be
treated as gratuitous.
Claim
for damages for negligence of the doctors or the ESI hospital/dispensary is
clearly beyond the jurisdictional power of the Employee’s Insurance Court Insurance Court Insurance Court
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration, Email: cksdas@yahoo.co.in
MEDICAL NEGLIGENCE CASES - CIVIL
LAWS Page 93
Having
considered all these aspects, we are of the view that the appellant is a
consumer within the ambit of Section 2(1)(d) of the Consumer Protection Act,
1986 and the medical service rendered in the ESI hospital/dispensary by the
respondent Corporation falls within the ambit of Section 2(1)(o) of the
Consumer Protection Act and, therefore, the consumer forum has jurisdiction to
adjudicate upon the case of the appellant. We further hold that the jurisdiction
of the consumer forum is not ousted by virtue of sub-section (1) or (2) or (3)
of Section 75 of the Employee’s State Insurance Act, 1948.
(FAILURE
IN ANAESTHESIA)
Sathy
M. Pillai (Dr.) And Anr. vs. S. Sharma And
Ors. (NCDRC): IV (2007) CPJ 131 NC
Patient aged 25 years, wife of the first
complainant and the daughter of the second complainant was admitted to the
hospital of the first opposite party, to do sutures to be made at the mouth of
the uterus to retain the pregnancy and prevent miscarriage. At 6 a.m. she
walked into the operation theatre. At 10 p.m. the complainants were informed
that the Patient vomited and wanted clothings. Second complainant was declined
permission to see the Patient. At midnight when the complainants heard loud
cries of the Patient. The second complainant was permitted and saw her lying
nude pressed to the floor by the first opposite party and three of staff of the
hospital. The Psychiatrist was brought to the hospital who found the Patient
was under sedation. Later on they were informed that she has expired. Surgeon,
who conducted the postmortem in the medical college hospital opined that the
death was due to shock following spinal anaesthesia. The patient was 4 months
pregnant at the time of her death and had to under go pain, suffering, anxiety
and mental agony. Opposite parties never exercised proper care as expected of
them. Second opposite party, a skin specialist, who administered anaesthesia
though he was not qualified to do so. She was also given overdose of sedation
in addition to spinal anaesthesia.
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration, Email: cksdas@yahoo.co.in
MEDICAL NEGLIGENCE CASES - CIVIL
LAWS Page 94
Informed
Consent: A perusal of the eight consent forms which are basically in Malayalam
shows that Samad Hospital
The
case record does not show clearly who has suggested spinal anaesthesia and who
had administered spinal anaesthesia if it has failed. Sequential
contemporaneous record is missing. The State Commission has pointed out this
lacuna. In Exbt. R-3 which mentioned about the entry “encirclage L/A (failed
S/A)” what is to be noted is there is overwriting in L/A itself. L is seen
written on S, then in brackets it is stated, “(S/A failed)”. Serious attack was
made by complainants against Exbt. R 3. The first inconsistency pointed out by
the learned Counsel for the complainant is, in Exbt. R2 there is no statement
that “S/A failed”. As has indicated early, what stated is cervical encirclage
done under L/A. Normally every treatment given to the patient should find a
place in the case sheet.
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration, Email: cksdas@yahoo.co.in
MEDICAL NEGLIGENCE CASES - CIVIL
LAWS Page 95
Dr.
Madhavan Pillai, the husband of the gynaecologist was only trained for three
months in giving anaesthesia. The case sheet does not reveal in clear cut terms
that Dr. Madhavan Pillai tried to administer spinal anaesthesia and he failed.
His name is not there and for how long he tried is also not mentioned. It is
clear that when the patient went into shock he was not there. The extracts of
the texts produced by him indicates that cervical encirclage can also be
performed by local anaesthesia, if that is so, knowing fully well that he was
trained only for a short period of three months, why he attempted spinal anaesthesia
has not been answered by him. Secondly, if he had failed in giving spinal
anaesthesia why did he ask his wife to give local anaesthesia even though he
claims to have been trained? Those who had undergone three months training in
anaesthesia are permitted to administer anaesthesia for simple and
straightforward cases, if so, the question why Dr. Madhavan Pillai ventured to
give spinal anaesthesia when he himself has produced records that this
procedure can be conducted under local anaesthesia, remains unanswered.
There
was poor post-operative care. It is clear from the records that several
complications arose and patient was writhing in pain and agony after operation.
Even then they did not summon any expert doctor for several hours after the
operation from 6 p.m. till half an hour before the death. Nor did they suggest
that she may be taken to another hospital for better management. Anaesthetist
and physician were called only at 11.30 a.m. and the patient died at 12 noon.
If they could have not managed the case they should have referred the case to
some other specialized hospitals. The case sheet points the needle of suspicion
towards Dr. Madhavan Piilai. Further Dr. Sathy M. Pillai herself in her
cross-examination has admitted “that surgery for encirclement of the cervix is
unlikely to cause death. However, any surgical procedure is associated with the
small percentage of risk” and that the patient was not having any other
diseases and apparently healthy, except for the pregnancy related complaints. The
cross-examination of the witnesses of the opposite parties also could not
dislodge that death was due to shock as a result of spinal anaesthesia.
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration, Email: cksdas@yahoo.co.in
MEDICAL NEGLIGENCE
CASES - CIVIL LAWS
Page 96
Cause of death: Though the doctors who have, performed post-mortem
have clearly stated that the cause of death was due to the result of spinal
anaesthesia, the treating doctors have failed to explain the cause of death
stating that even today they could not determine the same and state that it
could be an act of God.
The Apex Court Spring Meadows
Hospital
Gross
medical mistake will always result in a finding of negligence. Use of wrong gas
during the course of anaesthetic will frequently lead to the imposition of
liability and in some situations even the principle of res ipsa loquitur can be applied. Ratio of this case to a great
extent applies to the case under consideration.
(NEGLIGENCE – HUSBAND AND CHILDREN ELIGIBLE
FOR DAMAGES)
D. Rama
Rajyam (Dr.) vs. P.K. Vasudeva Rao And Ors. NCDRC: III (2007) CPJ 295 NC
Patient Vijayalakshmi is the wife of the
complainant and the mother of the minor children. Smt. Vijayalakshmi was
suffering from fever and her husband took her to Dr. Rama Rajyam for treatment
at her nursing home at Bobbili. She was prescribed Diclozil and asked for blood
report. As the fever did not subside the patient was again taken to the nursing
home and later the patient complained of stomachache and Dr. Rama Rajyam
advised removal of uterus as it may lead to cancer without conducting any
investigation. She prescribed Inferon injection for improvement of Haemoglobin
and took 3 1/2 hours for conducting the hysterectomy. In the evening the doctor
requested to get blood and the complainant brought some persons for donating
the blood, despite giving a lot of blood there was no improvement in her
condition and ultimately the patient expired.
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration, Email: cksdas@yahoo.co.in
MEDICAL NEGLIGENCE CASES - CIVIL
LAWS Page 97
The
case sheets were not given to the complainant by Dr. Rama Rajyam despite
several requests. They were only filed during the course of arguments which
motivated the State Commission to take adverse note of their conduct. A perusal
of the case sheets clearly gives an impression that these records were written
at one stretch, long after the events have occurred and not as and when the
events took place. They are written on plain sheets of paper and the letterhead
of the hospital is conspicuously absent. There is no signature of the doctor or
of the nurse on anyone of the sheets. These case sheets are not supported by
any affidavit of the doctor, hence the case sheets are not believable.
Hysterectomy
is a major operation which has to be performed only after the need is
established. It is clear that in this case it was an elective surgery and not
an emergency surgery. No record has been filed before the State Commission or
before us to prove the urgency for performing hysterectomy.
Test
records of the doctor who recommended test, name of the pathological laboratory,
name of the pathologist who conducted the tests are missing. It is not possible
to accept this as a piece of evidence in support of the contention of the
doctor that pre-operative tests were recommended and were conducted.
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration, Email: cksdas@yahoo.co.in
MEDICAL NEGLIGENCE CASES - CIVIL
LAWS Page 98
Assuming
for a moment we believe that the patient was healthy till the night of 16th
September, 1994 and complained of chest pain at 8.00 a.m. with increased rate
of respiration and pain in lower limbs etc., we are baffled why the doctors did
not get any doctor from the town to assist her especially a cardiologist. On
the other hand, she has written in the so called case sheets that she
recommended shifting of the patient to Vizag as she suspected Pulmonary
Embolism. Vishakhapatnam is 90 kms. away from
Bobbili and the patient would have certainly died on way to Vishakhapatnam .
She has not stated that she was willing to take the patient to Vishakhapatnam in an ambulance along with the life saving
drugs and other live saving equipments. It appears to be purely an
after-thought.
It is
the contention of Dr. Rama Rajyam that hysterectomy had been performed after
clinical assessment by a Gyanecologist. There is no letter of Gynaecologist Dr.
Nirmala who has stated to have recommended hysterectomy. It is important to
note that an MBBS doctor decided to perform this elective major surgery without
taking the assistance of an anaesthetist or even another doctor at any stage
even at a critical stage till the death of the patient.
In this
case, the complainant has successfully discharged the initial burden that the
doctor was negligent and as a result of the said negligence the patient died
but the doctor concerned has not discharged the burden, to prove that there was
no negligence in her treatment.
The learned
Counsel for Dr. Rama Rajyam contended that two different complaints were filed
before the State Commission, one by the husband of the deceased and another by
the children of the deceased, the second one through their guardian. We do not
find any merit in this argument because children of the deceased are also
eligible for compensation as they are minors and as they were staying with
their guardian and hence they have filed a separate complaint and State
Commission has rightly awarded compensation to them also.
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration, Email: cksdas@yahoo.co.in
MEDICAL NEGLIGENCE CASES - CIVIL
LAWS Page 99
(INFORMED CONSENT)
Samira Kohli vs. Dr. Prabha
Manchanda & Anr. (2008) 2 SCC 1
(i) Whether informed consent of a patient
is necessary for surgical procedure involving removal of reproductive organs?
If so, what is the nature of such consent?
(ii) When a patient consults a medical
practitioner, whether consent given for diagnostic surgery can be construed as
consent for performing additional or further surgical procedure - either as
conservative treatment or as radical treatment - without the specific consent
for such additional or further surgery?
Consent
in the context of a doctor-patient relationship, means the grant of permission
by the patient for an act to be carried out by the doctor, such as a diagnostic,
surgical or therapeutic procedure. Consent can be implied in some circumstances
from the action of the patient. For example, when a patient enters a dentist’s
clinic and sits in the dental chair, his consent is implied for examination,
diagnosis and consultation. Except where consent can be clearly and obviously
implied, there should be express consent. There is, however, a significant
difference in the nature of express consent of the patient, known as real
consent in UK and as
informed consent in America
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration, Email: cksdas@yahoo.co.in
MEDICAL NEGLIGENCE CASES - CIVIL
LAWS Page 100
(i) A
doctor has to seek and secure the consent of the patient before commencing a
‘treatment’ (the term ‘treatment’ includes surgery also). The consent so
obtained should be real and valid, which means that: the patient should have
the capacity and competence to consent; his consent should be voluntary; and
his consent should be on the basis of adequate information concerning the
nature of the treatment procedure, so that he knows what is consenting to.
(ii)
The ‘adequate information’ to be furnished by the doctor (or a member of his
team) who treats the patient, should enable the patient to make a balanced
judgment as to whether he should submit himself to the particular treatment as
to whether he should submit himself to the particular treatment or not. This
means that the Doctor should disclose (a) nature and procedure of the treatment
and its purpose, benefits and effect; (b) alternatives if any available; (c) an
outline of the substantial risks; and (d) adverse consequences of refusing
treatment. But there is no need to explain remote or theoretical risks
involved, which may frighten or confuse a patient and result in refusal of
consent for the necessary treatment. Similarly, there is no need to explain the
remote or theoretical risks of refusal to take treatment which may persuade a
patient to undergo a fanciful or unnecessary treatment. A balance should be
achieved between the need for disclosing necessary and adequate information and
at the same time avoid the possibility of the patient being deterred from
agreeing to a necessary treatment or offering to undergo an unnecessary treatment.
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration, Email: cksdas@yahoo.co.in
MEDICAL NEGLIGENCE CASES - CIVIL
LAWS Page 101
(iii)
Consent given only for a diagnostic procedure, cannot be considered as consent
for therapeutic treatment. Consent given for a specific treatment procedure
will not be valid for conducting some other treatment procedure. The fact that
the unauthorized additional surgery is beneficial to the patient, or that it
would save considerable time and expense to the patient, or would relieve the
patient from pain and suffering in future, are not grounds of defence in an
action in tort for negligence or assault and battery. The only exception to
this rule is where the additional procedure though unauthorized, is necessary
in order to save the life or preserve the health of the patient and it would be
unreasonable to delay such unauthorized procedure until patient regains
consciousness and takes a decision.
(iv) There can be a
common consent for diagnostic and operative procedures where they are
contemplated. There can also be a common consent for a particular surgical
procedure and an additional or further procedure that may become necessary
during the course of surgery.
(QUANTUM OF COMPENSATION)
Oriental Insurance Company Ltd. vs. Jashuben and Ors. [(2008) 4 SCC 162]
What would
have been the income of the deceased on the date of retirement was not a
relevant factor in the light of peculiar facts of this case and, thus, the
approach of the Tribunal and the High Court must be held to be incorrect. It is
impermissible in law to take into consideration the effect of revision in scale
of pay w.e.f. 1.1.1997 or what would have been the scale of pay in 2002. The
loss of dependency, in our opinion, should be calculated on the basis as if the
basic pay of the deceased been Rs. 3295/- X 2 = Rs. 6,590/-, thereto should be added
18.5% dearness allowance which comes to Rs. 1219/-, child education allowance
for two children @ Rs. 240/- X 2 = Rs. 480 and child bus fare Rs. 160 X 2 = Rs.
320/- should have been added which comes to Rs. 8,609/- From the aforementioned figure 1/3rd should
be deducted. After deduction, the amount of income comes to Rs. 5,738/- per
month [Rs. 8609/- - Rs. 2871/-] and the amount of compensation should be
determined by adopting the multiplier of 13, which comes to Rs. 8,95,128/-
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration, Email: cksdas@yahoo.co.in
MEDICAL NEGLIGENCE CASES - CIVIL
LAWS Page 102
(SUFFICIENT CARE)
Dr.
B.N. Gurudev vs. Dr. N. Ramanna and Ors., I (2008) CPJ 84 NC (NCDRC)
The appellant met with an accident and sustained serious injuries
resulting in fracture of the right leg. A team of doctors conducted an emergency
surgery and advised to consult a Vascular Surgeon at Manipal
Hospital , Bangalore Manipal Hospital
The
consent, was given by the wife of the patient who is an educated lady and she
was staying along with him in the hospital for arteriogram examination, biopsy,
transfusion or operation and for administration of anaesthesia as well as
postmortem in the unfortunate event of death. She also gave the consent for
Angiogram, femoropopileteal embolectomy. Further after the surgery, the patient
has given consent for wound inspection as well as for wound debridness.
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration, Email: cksdas@yahoo.co.in
MEDICAL NEGLIGENCE CASES - CIVIL
LAWS Page 103
It is
true that there is no separate specific consent for amputation of the right leg
but it is clear from the affidavit of the operating surgeon that when the
complainant’s wife was told about this and she swooned and hence, she was taken
to a separate room for treatment. She has not filed any affidavit to deny this.
After performing the arteriography when it was found that his limb had become
non-viable and gangrene has set in, and the surgeon attending on him has no
choice but to perform amputation to save the life of the patient as by that
time it had become an emergency procedure.
It is
clear from the records and evidence placed before us that a Cardiovascular
Surgeons are competent to perform Vascular Surgery. Off late there are super
specialists performing only Vascular Surgery. However, Vascular Surgeons do not
generally perform cardiac surgery. Patient himself decided to get discharged
from the KMC Hospital ,
Hubli and got admitted to the Manipal
Hospital
Popliteal
arterial injury can usually be diagnosed rapidly if the initial examiner
appreciates the signs and implications of this injury. Seventy percent of the
patients in a recent series presented with pulse less extremities, and most of
them also had other signs of ischemia. These findings usually lead to a rapid
diagnosis and immediate operation. Thirty per cent of patients present with
less obvious signs, however, and half of these people have only wounds that are
in close proximity to major vessels. Most penetrating popliteal injuries can be
identified by adhering to the principle of arteriographic or operative
exclusion of underlying arterial trauma. The diagnosis of blunt injury often is
less obvious, and this is the reason for most treatment delays. Thirty two per
cent of patients with knee dislocations have arterial injuries and the
amputation rate is 86 per cent in those limbs that are not revascularized
within eight hours.
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration, Email: cksdas@yahoo.co.in
MEDICAL NEGLIGENCE CASES - CIVIL
LAWS Page 104
(MEDICAL NEGLIGENCE)
Martin F.D’Souza vs. Mohd. Ishfaq, [(2009) 3 SCC 1]: 2009ACJ1695,
AIR2009 SC 2049, 2009(2) AWC1220 (SC), 2009(57)BLJR985, 2009(3)BomCR202,
2009BusLR184 (SC), (2009)154PLR1, RLW2009(2)SC1094, (2009)3SCC1,
2009(2)UJ794(SC)
(1) Judges are
not experts in medical science, rather they are laymen. This itself often makes
it somewhat difficult for them to decide cases relating to medical negligence.
Moreover, Judges have usually to rely on testimonies of other doctors which may
not necessarily in all cases be objective, since like in all professions and
services, doctors too sometimes have a tendency to support their own colleagues
who are charged with medical negligence. The testimony may also be difficult to
understand, particularly in complicated medical matters, for a layman in
medical matters like a Judge; and (2) A balance has to be struck in such cases.
While doctors who cause death or agony due to medical negligence should
certainly be penalized, it must also be remembered that like all professionals
doctors too can make errors of judgment but if they are punished for this no
doctor can practice his vocation with equanimity.
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration, Email: cksdas@yahoo.co.in
MEDICAL NEGLIGENCE CASES - CIVIL
LAWS Page 105
Deviation from
normal practice is not necessarily evidence of negligence. To establish
liability on that basis it must be shown (1) that there is a usual and normal
practice; (2) that the defendant has not adopted it; and (3) that the course in
fact adopted is one no professional man of ordinary skill would have taken had
he been acting with ordinary care. A medical practitioner is not liable to be
held negligent 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. He would be liable only where his conduct fell below
that of the standards of a reasonably competent practitioner in his field. For
instance, he would be liable if he leaves a surgical gauze inside the patient
after an operation or operates on the wrong part of the body, and he would be
also criminally liable if he operates on someone for removing an organ for
illegitimate trade.
The
professional is one who professes to have some special skill. A professional
impliedly assures the person dealing with him (i) that he has the skill which
he professes to possess, (ii) that skill shall be exercised with reasonable
care and caution.
(NEGLIGENCE - TUBERCULAR
PERITONITIS)
INS Malhotra (Ms) vs. Dr.A.Kripalani (2009) 4 SCC 705
Priya Malhotra complained
of burning sensation in stomach, vomiting and diarrhea and was admitted to the Bombay Hospital
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration, Email: cksdas@yahoo.co.in
MEDICAL NEGLIGENCE CASES - CIVIL
LAWS Page 106
immediate Haemodialysis to
save life but even after that to have vomiting and diarrhea and the same went
out of control. Dr. A. Kriplani directed performance of Ba-meal and Ba- enema
tests suspecting Koch’s of abdomen and the two tests conformed dilated loops of
small intestine. Dr. Vasant S. Sheth carried out ascetic tapping. Then, Dr. A.
Kriplani advised Peritoneoscopy and ultrasonography and prescribed Streptomycin
injection with other medicines and CT scan for confirmation of T.B. lower
abdomen. Four bottles of blood were given to Priya Malhotra during diagnosis.
Liver profile and renal profile tests were performed. Liver profile showed ‘Australia J.J.
Hospital , Bombay
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration, Email: cksdas@yahoo.co.in
MEDICAL NEGLIGENCE CASES - CIVIL
LAWS Page 107
Medical
profession necessarily calls for a treatment with a difference. A simple lack
of care, an error of judgment or an accident, is not proof of negligence on the
part of a medical professional. So long as a doctor follows a practice
acceptable to the medical profession of that day, he cannot be held liable for
negligence merely because a better alternative course or method of treatment
was also available or simply because a more skilled doctor would not have
chosen to follow or resort to that practice or procedure which the accused
followed. The classical statement of law in Bolam’s case, has been widely
accepted as decisive of the standard of care required both of professional men
generally and medical practitioners in particular, and holds good in its
applicability in India
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration, Email: cksdas@yahoo.co.in
MEDICAL NEGLIGENCE
CASES - CIVIL LAWS
Page 108
(INFORMED CONSENT,
HEMIARTHROPLASTY & INTERNAL FIXATION)
C.P.Sreekumar (Dr.), MS (Ortho)
vs. S.Ramanujam (2009) 7 SCC 130
The respondent was hit by a motorcycle
leading to an injury to his leg on 31st December 1991. He was admitted to the Surya Hospital
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration, Email: cksdas@yahoo.co.in
MEDICAL NEGLIGENCE CASES - CIVIL
LAWS Page 109
Admittedly the respondent had suffered a
simple Garden Type I hairline fracture in the course of the accident on 31st
December 1991 and after he had been examined by the appellant on that day, his
leg had been immobilized with the help of derotation boots. It is the case of
the respondent that when he was taken for an X-ray on 8th January
1992 it was found that the simple Garden I type fracture had developed into a
complicated Garden III type fracture, and that this happened on account of rough
handling by attendants who were mere labourers, whereas it is the case of the
appellant that this had occurred due to a muscular spasm. We find from a
reading of the order of the Commission that it proceeded on the basis that
whatever had been alleged in the complaint by the respondent was in fact the
inviolable truth even though it remained unsupported by any evidence. As
already observed in Jacob Mathew’s case the onus to prove medical negligence
lies largely on the claimant and that this onus can be discharged by leading
cogent evidence. A mere averment in a complaint which is denied by the other
side can, by no stretch of imagination, be said to be evidence by which the
case of the complainant can be said to be proved. It is the obligation of the complainant
to provide the facta probanda as well
as the facta probantia.
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration, Email: cksdas@yahoo.co.in
MEDICAL NEGLIGENCE CASES - CIVIL
LAWS Page 110
We find that no
firm conclusion as to the preference of one or the other procedure can be drawn
but for a Garden type III fracture on a young person, internal fixation is
ordinarily the favoured but not the only option as some of the texts referred
also proceed on a school of thought which prescribe that in order to avoid long
drawn out recovery and other complications, it is advisable to go in for a
hemiarthroplasty notwithstanding the age factor. It has also been observed that
condition of the patient and of the bone would be relevant determining factors
in the choice which the doctor wishes to make. It is equally significant that
the respondent had taken the advice of several renowned doctors including Dr.
Mohan Das and Dr. Nand Kumar, but none of them in their treatment notes observed
adversely about the choice of treatment nor any negligence in the actual
operation. In the light of the fact that there is some divergence of opinion as
to the proper procedure to be adopted, it cannot be said with certainty that
the appellant, Dr. Sreekumar was grossly remiss in going in for
hemiarthroplasty. It would, thus, be seen that the
appellant’s decision in choosing hemiarthroplasty with respect to a patient of
42 years of age was not so palpably erroneous or unacceptable as to dub it as a
case of professional negligence.
(USAGE OF STEROIDS IN TREATMENT)
Malay
Kumar Ganguly vs. Sukumar Mukherjee & Ors. (Supreme
court of India) (2009) 9 SCC 221
Precautions as
also the course of actions suggested by the authors have not been undertaken by
the respondents. It is to be noted that the learned author’s expertise in the
field is neither in doubt nor in dispute, particularly when both parties have
extensively relied thereupon. Even the suspected offending drug was not
withdrawn at later stages. This drug is considered to be a real risk for the
patient suffering from TEN. The medicine has also been administered having
regard to the physical
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration, Email: cksdas@yahoo.co.in
MEDICAL NEGLIGENCE CASES - CIVIL
LAWS Page 111
condition of
the patient. They were required to be given only as a part of the total
program. We may also place on record that there has been a cleavage of opinion
in regard to mortality rate. Whereas according to the one group of experts in
TEN patients when properly treated and in particular given supportive
treatment, the mortality rate is 0-10%.
The respondents contend that that in fact the mortality rate is quite
high being 30-70%. We would assume that the mortality rate is very high. If
that be so, we feel that the doctors should have been more careful. They should
have treated the patient upon exercise of more care and caution. For the said
purpose, if they had not been able to diagnose the disease properly or identify
the proper drug they would have undertaken some research. It is clear that they
did not have any expertise in the field and therefore they ought not to have
behaved as experts.
A patient
would feel the deficiency in service having regard to the cumulative effect of
negligence of all concerned. Negligence on the part of each of the treating
doctors as also the hospital may have been contributing factors to the ultimate
death of the patient. But, then in a case of this nature, the court must deal
with the consequences the patient faced keeping in view the cumulative effect. So
far as the judgment of the Commission is concerned, it was clearly wrong in
opining that there was no negligence on the part of the hospital or the
doctors. We remit the case back to the Commission only for the purpose of
determination of quantum of compensation.
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration, Email: cksdas@yahoo.co.in
MEDICAL NEGLIGENCE CASES - CIVIL
LAWS Page 112
(EXPERT EVIDENCE)
V.
Kishan Rao vs. Nikhil Super Speciality
Hospital, (Supreme court of India)
2010 (5) SCR 1
The appellant got his wife admitted in the
Respondent No. 1 hospital on 20.07.2002 as his wife was suffering from fever
which was intermittent in nature and was complaining of chill. According to the
complainant his wife was not responding to the medicines and thus her condition
worsened day by day. The patient was finally shifted to Yashoda Hospital
The three Judge
Bench in Dr. J. J. Merchant [(2002) 6 SCC 635)] accepted the position that it
has to be left to the discretion of Commission to examine experts if required
in an appropriate matter. It is equally true that in cases where it is deemed
fit to examine experts, recording of evidence before a Commission may consume
time. The Act specifically empowers the Consumer Forums to follow the procedure
which may not require more time or delay the proceedings.
It is clear
from the statement of objects and reasons of the Act that it is to provide a
forum for speedy and simple redressal of consumer disputes. Such avowed
legislative purpose cannot be either defeated or diluted by superimposing a
requirement of having expert evidence in all cases of medical negligence regardless
of factual requirement of the case. If that is done the efficacy of remedy
under the Act will be substantially curtailed and in many cases the remedy will
become illusory to the common man.
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration, Email: cksdas@yahoo.co.in
MEDICAL NEGLIGENCE CASES - CIVIL
LAWS Page 113
This Court
however makes it clear that before the consumer Fora, if any of the parties
wants to adduce expert evidence, the members of the Fora by applying their mind
to the facts and circumstances of the case and the materials on record can
allow the parties to adduce such evidence if it is appropriate to do so in the
facts of the case. The discretion in this matter is left to the members of Fora
especially when retired judges of Supreme Court and High Court are appointed to
head National Commission and the State Commission respectively. Therefore,
these questions are to be judged on the facts of each case and there cannot be
a mechanical or strait jacket approach that each and every case must be
referred to experts for evidence. When the Fora finds that expert evidence is
required, the Fora must keep in mind that an expert witness in a given case
normally discharges two functions. The first duty of the expert is to explain
the technical issues as clearly as possible so that it can be understood by a
common man. The other function is to assist the Fora in deciding whether the
acts or omissions of the medical practitioners or the hospital constitute
negligence. In doing so, the expert can throw considerable light on the current
state of knowledge in medical science at the time when the patient was treated.
In most of the cases the question whether a medical practitioner or the
hospital is negligent or not is a mixed question of fact and law and the Fora
is not bound in every case to accept the opinion of the expert witness. Although,
in many cases the opinion of the expert witness may assist the Fora to decide
the controversy one way or the other.
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration, Email: cksdas@yahoo.co.in
MEDICAL NEGLIGENCE CASES - CIVIL
LAWS Page 114
(GANGRENE
– NEGLIGENCE)
Minor Marghesh K. Parikh vs. Mayur H.Mehta
(Supreme Court of India
The appellant was admitted in the hospital
of the respondent on 31.10.1994 with the complaint of loose motions. After some
laboratory tests, the respondent put him on medication and also injected
glucose saline but started vomiting and having loose motions frequently. On
3.11.1994, the respondent is said to have administered glucose saline through
the left foot of the appellant. In the evening, the parents of the appellant
noticed swelling in the toe of his left foot, which was turning black. This was
brought to the notice of the respondent, who stopped the glucose. On the next
day, the parents of the appellant pointed out to the respondent that blackish
discoloration had spread. Thereupon, the appellant was sent to one Dr.
Chudasama, who was known to the respondent. Dr. Chudasama applied a small cut,
removed black coloured fluid from the left toe of the appellant and gave some
medicines. In the morning of 5.11.1994, it was noticed that the left leg of the
appellant had become totally black up to the knee. Dr. Ashwin Bhamar, who
examined the appellant, suspected that he had developed gangrene in his left
leg and the left leg was amputated below the knee.
The
crux of that is gangrene can take place because of so many reason, because of
serious type of dehydration and septicemia also it can happen so only because
of Glucose bottle this can take place this cannot be said. In this case patient
had serious dehydration that could not be established by respondent. Because
had that been a reality then the Glucose bottle could not be administered inter
vein and if the condition of minor patient was this much serious then in five
days not a single laboratory test was carried out that it beyond perception.
Moreover it is mentioned in these quotations that gangrene can happen to any
leg or hand whereas here it is clear fact that where the bottle was given to
the same leg it has happened. Moreover the Vascular Surgeon Dr. Bhamar says in
his cross- examination that if there is vomiting and loose motion it results in
gangrene. Thus the person like Vascular Surgeon having an experience gives
contrary opinion to the quotations submitted by the respondent. Moreover in his
affidavit Dr. Bhamar clearly states that in this case because of the Glucose
bottles gangrene has taken place as against this the respondent has not
produced any opinion of expert doctor of Dr. Chudasama on oath. In our honest
opinion the value of quotations is negligible as against the opinion of expert
doctor. Because, opinion of expert doctor explains these quotations and is
given.
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration, Email: cksdas@yahoo.co.in
MEDICAL NEGLIGENCE CASES - CIVIL
LAWS Page 115
Thus
the Glucose bottle was given to the left leg to it swelling came and skin
became black and that resulted into gangrene regarding that no proper action
was taken and because of that the one and half year old child had to loose leg
below the knee is proved with support of affidavit of an expert, the Vascular
Surgeon. As against this, respondent has produced his reply and only certain
quotations. The most important thing is that respondent is not caring to
produce the affidavit of such surgeon Dr. Chudasama whose opinion that was
taken. Considering all these facts and circumstances as per our honest opinion
clear cut defective service on the part of respondent is established
(RULE OF LIMITATION)
V.N.Shrikhande vs. Anita Sena Fernandes (Supreme Court of India
The respondent was a Nurse in Goa ,
who complained of pain in abdomen. The doctors in Goa
advised her to consult the appellant, who was having a hospital at Dadar,
Mumbai. After examining the report of the pathologist, which revealed that the
respondent had stones in her gall bladder, the appellant performed ‘Open
Cholecystectomy’ on 26.11.1993. The respondent was discharged from
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration, Email: cksdas@yahoo.co.in
MEDICAL NEGLIGENCE CASES - CIVIL
LAWS Page 116
the appellant’s hospital on 30.11.1993. For the
next about 9 years, the respondent neither contacted the appellant nor
consulted any other doctor despite the fact that after the surgery she was
having pain in the abdomen off and on, for which she was taking painkillers and
she had to remain on leave at regular intervals. In September, 2002, the
respondent was admitted in the hospital and C.T. scan of her abdomen was done
on 23.9.2002, which revealed the following: A well-defined rounded mass showing
predominantly peripheral enhancement is seen in relation to the left lobe of
liver as described above. This is more likely to be an exophytic neoplasm from
the undersurface of left lobe of liver than a pancreatic lesion. Further
evaluation of FNAC is suggested. The
respondent got herself admitted in Lilavati
Hospital at Bombay Lilavati Hospital
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration, Email: cksdas@yahoo.co.in
MEDICAL NEGLIGENCE CASES - CIVIL
LAWS Page 117
GROSS EXAMINATION:
A shaggy surfaced firm brownish partly opened
mass measures 6x5, 6x3cms and weighs 50 gms. Several gauze pieces aggregating
to 5.5x5.2cms are also received alongside and adherent gauze pieces are also
present embedded within the mass. The cut surface of the tissue is brownish
yellow and shaggy. Four small lymph nodes measuring 3mm each are also observed.
Diagnosis: Gauze pieces within a mass in
epigastric region adherent to liver - Foreign body reaction lymph nodes -
Reactive Sinus Histiocytosis.
The District
Forum, the State Commission and the National Commission are not bound to admit
each and every complaint. Under Section 12(3), the District Forum is empowered
to decide the issue of admissibility of the complaint. The District Forum can
either allow the complaint to be proceeded with, which implies that the
complaint is admitted or reject the same. Similar power is vested with the
State Commission under Section 18 and the National Commission under Section 22.
If the concerned forum is prima facie satisfied that the complainant is a ‘consumer’
as defined in Section 2(d) and there is a ‘defect’, as defined in Section 2(f)
in relation to any goods or there is ‘deficiency in service’ as defined in
Section 2(g) read with Section 2(o) and the complaint has been filed within the
prescribed period of limitation then it can direct that the complaint may be
proceeded with. On the other hand, if the concerned forum is satisfied that the
complaint does not disclose any grievance which can be redressed under the Act
then it can reject the complaint at the threshold after recording reasons for
doing so. Section 24A(1) contains a negative legislative mandate against
admission of a complaint which has been filed after 2 years from the date of
accrual of cause of action. In other words, the consumer forums do not have the
jurisdiction to entertain a complaint if the same is not filed within 2 years
from the date on which the cause of action has arisen. This power is required
to be exercised after giving opportunity of hearing to the complainant, who can
seek condonation of delay under Section 24A(2) by showing that there was
sufficient cause for not filing the complaint within the period prescribed
under Section 24A(1). If the complaint is per se barred by time and the
complainant does not seek condonation of delay under Section 24A(2), the
consumer forums will have no option but to dismiss the same.
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration, Email: cksdas@yahoo.co.in
MEDICAL NEGLIGENCE
CASES - CIVIL LAWS
Page 118
Section 26 is
another provision which empowers the consumer forums to dismiss the complaint
if it is found that the same is frivolous and vexatious. The exercise of this
power is hedged with the condition that the concerned consumer forum must
record reasons for dismissal of the complaint.
The power
conferred upon the consumer forums under Sections 12(3), 18 or 22 to reject the
complaint at the stage of admission should not be exercised lightly because the
Act has been enacted to provide for better protection of the interest of
consumers and the speedy and inexpensive redressal mechanism enshrined therein
is in addition to other remedies which may be available to the consumer under
the ordinary law of land. Therefore, admission of the complaint filed under the
Act should be the rule and dismissal thereof should be an exception. Of course,
if the complaint is barred by time, the consumer forum is bound to dismiss the
same unless the consumer makes out a case for condonation of delay under
Section 24A(2).
In cases of
medical negligence, no straitjacket formula can be applied for determining as
to when the cause of action has accrued to the consumer. Each case is to be
decided on its own facts. If the effect of negligence on the doctor’s part or
any person associated with him is patent, the cause of action will be deemed to
have arisen on the date when the act of negligence was done. If, on the other
hand, the effect of negligence is latent, then the cause of action will arise
on the date when the patient or his representative- complainant discovers the
harm/injury caused due to such act or the date when the patient or his
representative-complainant could have, by exercise of reasonable diligence
discovered the act constituting negligence.
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration, Email: cksdas@yahoo.co.in
MEDICAL NEGLIGENCE CASES - CIVIL
LAWS Page 119
In the light of the above, it is to be seen
whether the cause of action accrued to the respondent on 26.11.1993 i.e. the
date on which the appellant performed ‘Open Cholecystectomy’ and the piece of
gauze is said to have been left in her abdomen or in November, 2002 when she
received Histopathology report from Lilavati
Hospital
(DISCOVERY RULE)
Morgan vs. Grace
Hospital Inc. (West Virginia
A piece of
sponge had been left in the wound during a surgical operation but its presence
in the body did not come to light until 10 years later. The Court rejected the
objection of limitation and observed: It simply places an undue strain upon
common sense, reality, logic and simple justice to say that a cause of action
had ‘accrued’ to the plaintiff until the X-ray examination disclosed a foreign
object within her abdomen and until she had reasonable basis for believing or
reasonable means of ascertaining that the foreign object was within her abdomen
as a consequence of the negligent performance of the hysterectomy. We believe
that the ‘discovery rule’ as stated and applied in cases cited represents a
distinct and marked trend in recent decisions of appellate courts throughout
the nation.
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration, Email: cksdas@yahoo.co.in
MEDICAL NEGLIGENCE CASES - CIVIL
LAWS Page 120
(DISCOVERY RULE)
The plaintiff
underwent a surgical operation in 1946. A sponge was left in the wound when the
incision was closed. The same was discovered in the patient’s body in 1961.
During the intervening period the patient sustained considerable suffering,
during which she consulted various physicians. After reviewing numerous
authorities at great length, the Court cast aside the earlier doctrine, adopted
the Discovery Rule and observed: In reality, the ‘general rule’ has little to
recommend it. It is neither the position of a majority of the jurisdictions nor
is it firmly based on considerations of reason or justice. We will, therefore,
adhere to the following rule: where a foreign object is negligently left in a
patient’s body by a surgeon and the patient is in ignorance of the fact, and
consequently of his right of action for malpractice, the cause of action does
not accrue until the patient learns of, or in the exercise of reasonable care
and diligence should have learned of the presence of such foreign object in his
body.
(DISCOVERY RULE)
Quinton vs. United States
The wife of
the plaintiff was given blood transfusion in a Government hospital in 1956. In
June, 1959, the plaintiff and his wife during the latter's pregnancy discovered
that wrong type of blood was given to her in 1956 and as a result she gave
birth to a stillborn child. The Government sought dismissal of the action for
damages on the ground of limitation. The Court of Appeals opined that when a
claim accrues under the Federal Tort Claims Act, it is governed by Federal law
and not by local State law. The Court then held that the period of limitation
does not begin to run until the claimant discovers, or in the exercise of
reasonable diligence should have discovered the act constituting the alleged
negligence.
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration, Email: cksdas@yahoo.co.in
MEDICAL NEGLIGENCE CASES - CIVIL
LAWS Page 121
(DISCOVERY RULE)
Josephine Flanagan vs.
Mount Eden General Hospital LEXSEE (New York
The
application of the rule of Discovery was considered in the background of fact
that during the course of operation done on 14.7.1958, surgical clamps were
inserted in the plaintiff's body. In 1966, the plaintiff consulted a doctor
because she experienced severe pain in the region of her abdomen. The doctor
told her that surgical clamps were discovered by X- ray analysis. Thereafter,
another operation was performed to remove the clamps. The defendants sought
dismissal of the complaint on the ground that the same was barred by time. The
Court referred to the Discovery Rule and observed: The so-called discovery rule
employed in foreign object medical malpractice cases is in compatible harmony
with the purpose for which Statutes of Limitation were enacted and strikes a
fair balance in the field of medical malpractice. The unsoundness of the
traditional rule, as applied in the case where an object is discovered in the
plaintiff's body, is patent. It
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration, Email: cksdas@yahoo.co.in
MEDICAL NEGLIGENCE CASES - CIVIL
LAWS Page 122
simply places
an undue strain upon common sense, reality, logic and simple justice to say
that a cause of action had ‘accrued’ to the plaintiff until the X-ray
examination disclosed a foreign object within her abdomen and until she had
reasonable basis for believing or reasonable means of ascertaining that the
foreign object was within her abdomen as a consequence of the negligent performance
of the operation. In the case before us, the danger of belated, false or
frivolous claims is eliminated. In addition, plaintiff’s claim does not raise
questions as to credibility nor does it rest on professional diagnostic
judgment or discretion. It rests solely on the presence of a foreign object
within her abdomen. The policy of insulating defendants from the burden of
defending stale claims brought by a party who, with reasonable diligence, could
have instituted the action more expeditiously is not a convincing justification
for the harsh consequences resulting from applying the same concept of accrual
in foreign object cases as is applied in medical treatment cases. A clamp,
though immersed within the patient’s body and undiscovered for a long period of
time, retains its identity so that a defendant’s ability to defend a stale
claim is not unduly impaired. Therefore, where a foreign object has negligently
been left in the patient’s body, the Statute of Limitations will not begin to
run until the patient could have reasonably discovered the malpractice.
Adv.C.K.SIVADASAN,
Consultant – Medico-Legal & Hospital Administration, Email: cksdas@yahoo.co.in
For more information, PLEASE VISIT:
MEDICAL CASES – ALPHABETICAL INDEX
MEDICAL CASES – SUBJECT INDEX
MEDICAL CASES – CRIMINAL – GIST
MEDICAL CASES – HOSPITAL – GIST
MEDICAL PROFESSION IN INDIA
HOSPITAL
ADMINISTRATION – A LEGAL PERSPECTIVE
IMPORTANCE
OF HR IN HOSPITAL ADMINISTRATION
EMERGENCY
MEDICINE – LEGAL AND OPERATIONAL IMPEDIMENTS
IMPORTANCE
OF CONSENT IN TREATMENT
No comments:
Post a Comment